Professional Documents
Culture Documents
Whores of The Court
Whores of The Court
Whores of The Court
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Psychologists as De Facto
Triers of Fact in Our Justice System
faster and faster, what her mind had fought so hard to keep hidden
from view-that as a child herself she had witnessed the murder of
her little friend, Susan Nason, at the hands of Eileen's own father,
George Franklin. When these long-repressed memories were fully
recovered and Eileen knew what she had, she also knew what she had
to do. She brought before the legal authorities in California her
memory of that terrible trauma from so long ago.
On November 28, 1989, the police arrested George Franklin
and charged him with the murder of nine-year-old Susan Nason
twenty years before.
There was not much direct evidence in this case. Susan's body
had been found eight weeks after the murder in a rather remote
wooded area. T h e material details of the case were widely published
in the media-that Susan's head had been crushed by a rock, that she
had worn a silver ring on her finger, that she was found lying not far
from an old mattress-but at the time of the crime, no circumstantial
evidence tied any particular individual to the crime and no eyewit-
nesses came forward.
Twenty years later there was still not much evidence other than
Eileen's recovered memories. She said her father committed the
murder; he said he did not. N o one else saw anything. Eileen claimed
that the trauma of witnessing the horrifying murder of her little
friend had been so great that she repressed the memory for all those
years and then, quite inexplicably, recovered it twenty years later.
Given the lack of physical evidence and the heavy reliance on
psychological claims in this case, it is not surprising that in Franklin's
trial for murder the bulk of the "evidence" presented was the opinion
of experts-psychiatrists and psychologists-concerning the repres-
sion and recovery of memory, and the consequent reliability of
Eileen's accusations against her father. Dr. Lenore Terr, a California
psychiatrist, was the prosecution's principal witness in explaining to
the court the obscure psychological phenomena the jury had to con-
sider in weighing the case against George Franklin.
The prosecution's case rested on certain psychopolitical assump-
tions that have become popular in some segments of the mental health
community. It is assumed that children who experience terrible trauma,
like witnessing murder or experiencing sex abuse, often suffer, like
some Vietnam vets, from post traumatic stress syndrome. It is also said
WHORES OF T H E C O U R T
3
that one of the most common features of this stress disorder is the loss
of the memory of the precipitating traumatic event-what psychiatrists
call "repression" of the traumatic memories-because the mind seeks
unconsciously to protect the person from having to reexperience the
trauma in memory. Lastly, it is assumed that repressed memories can
be recovered in the proper conditions, usually in the context of therapy,
but perhaps through an accidental triggering as in Eileen's case.
These psychological assumptions and countless others like
them-lacking any scientific basis but embraced unquestionably by
their adherents-over the last twenty-five years have crept insidi-
ously into our legal system, into legislative bodies and courtrooms all
over the country.
In George Franklin's case, the judge and jury accepted as scien-
tific fact Dr. Terr's testimony regarding trauma theory, repression,
and recovered memories; they took as truth the startlingly assured
statements of this psychological expert about historical facts and
mental mix-ups, and her confident explanations of the way the mind
works. O n November 30, 1990, based on the word of his estranged
daughter and the testimony of this expert psychological witness,
George Franklin was convicted of murder and sentenced to life in
prison.
Dr. Terr writes that when Elaine Tipton, the prosecutor, asked
several jurors after the trial what led to their decision, "She told me
that a number of them said my testimony had convinced them. I
learned something from that: sometimes hypotheticals are just as
compelling as specifics" (Terr 1994, p. 58).
Did George Franklin murder Susan Nason? Was Eileen really
so scared by the awful event she witnessed that she immediately lost
all memory of it, continuing to pal around happily with her father as
before, riding around the state unconcernedly in the same vehicle
where she supposedly witnessed the assault on her little friend? Can a
memory really be blown out like a candle in an instant, only to be
relit by accident twenty years down the line? When Dr. Terr lectured
the courtroom in California on the mysterious operations of the
mind that would permit just such a sequence of events to transpire,
should the court have accepted what she said as reliable truth?
All over America today, psychological professionals like Lenore
Terr are climbing confidently into the witness box to lecture judges
4 WHORES OF T H E COURT
and juries on just such matters: how the mind works, how memory
works, what a trauma is, what effects trauma has on memory, which
memories are trustworthy and which are not.
With nothing else to go on in most of these trials other than the
word of the psychoexperts so confidently testifying, it is crucial that
we know the answer to these questions: Do all these hundreds of very
expensive experts really know what they are talking about? Can the
rest of us trust them? Can we rely on what they tell us to be the last
word in scientific knowledge about the workings of the mind?
Alas, no. Psychology's takeover of our legal system represents
not an advance into new but clearly charted areas of science but a ter-
rifying retreat into mysticism and romanticism, a massive suspension
of disbelief propelled by powerful propaganda.
Thanks to the willingness of judges and juries to believe psy-
chobabble with scientific foundations equal to horoscope charts,
babble puffed about by psychological professionals with impressive
credentials, what we've got now are thousands of self-styled soul doc-
tors run amok in our courts, drunk with power, bedazzled by spectac-
ular fees for the no-heavy-lifting job of shooting off their mouths
about any psychological topic that sneaks a toe into a courtroom.
The demand is great, the supply is huge, and the science behind
it all is nonexistent. But the reality does not matter.
With the passage of well-intentioned and broad-reaching social
welfare and safety net legislation over the last decade buttressing
Americans' willingness to buy into any claim made by a certified psy-
chological professional-not just claims about trauma and memory-
our legal system today generates a virtually unlimited demand for
psychoexpert services while the psychoexperts display an equally
unlimited willingness to service those demands.
Lenore Terr sound-alikes are echoing around the country in
hundreds of courtrooms in various types of trials both criminal and
civil. Thousands of psychological "experts" confidently-and expen-
sively-inform judges and juries, patients, plaintiffs and defendants
not only about how memory works-as in the Franklin trial-but
how the mind itself works, how the personality is formed, what
aspects of character and behavior can be changed and how to go
about it, as well as what wrong was done, when and how it was done,
who did it, how much responsibility a party bears, and whether and
WHORES OF T H E COURT
5
They are wrong. Even for what is probably the most important
question-"Will this guy kill or rape again?"-the forensic clinician is
correct in his or her predictions no more than one third of the time.
you have therapists testifying that yes, it is absolutely crucial that this
plaintiff receive plenty of expensive psychotherapy for her disorder.
Having therapists testify about the need for psychotherapy is about as
smart as answering an insulation ad that promises Free Analysis of
Your Home's Heating Efficiency.
entists have clung to the mistaken belief that the practice of psy-
chology in the public domain is the territory of the clinical practi-
tioners. T h e scientists felt that if they didn't step on the clinicians'
territory, the clinicians wouldn't step on theirs.
Who are the scientists and who are the clinicians among the dif-
ferent varieties of psychologists? T h e scientists, the experimentalists,
are researchers who study perception, language, learning, cognition,
and memory, mainly. T h e clinical types are the practitioners who
focus on personality as well as on so-called abnormal behavior.
Another way of saying this is that the experimentalists don't see
patients; the clinicians do. (That's why they are called "clinicians";
they go to clinics to see patients.) Also, the clinicians don't do experi-
ments; the experimentalists do, sometimes in laboratories and some-
times in the real world. Of course, these divisions aren't clean. There
are people who study personality for example, who do real experi-
ments; there are learning theorists who see patients; and so on. But in
general, the two divisions hold well enough.
T h e split into clinician/practitioner versus scientist/experimen-
talist also holds across the various psychological subdivisions of aca-
demic clinical psychology, professional psychology, psychiatry,
counseling, and psychiatric social work and nursing. In each subdivi-
sion, the majority of the practitioners are clinicians untrained and
inexperienced in scientific research; the minority were actually trained
in or actively engage in science.
For social workers and for psychiatrists and psychiatric nurses in
medical educational settings, the situation is even worse than for con-
ventionally trained Ph.D. psychologists. In these fields, there is not
even the rhetorical expectation that the future practitioner will be
broadly educated in psychological theory and research.
(In this book, I will use common terms for psychological practi-
tioners working within the realm of the justice or legal system-psy-
chiatrists, psychologists, social workers, or other-whatever the
particular education and training, unless that background is relevant
to understanding or evaluation of some point.)
The most insidious thing about bad science is that it can afflict
even some of the more intelligent, methodical, and honest mem-
bers of the scientific community. The reason is that it appeals to
a broad element in human nature, not just to vices but to some
virtues as well.
Peter Huber, Galileo 's Revenge, 1993
I'm in bed with Ann. We're making love. She teases me, and I
get my feelings hurt. I don't know why, but I hate her for
teasing me. So we stop malung love, and we each turn away
from the other and go to sleep. Now I'm sleeping. I began to
dream. In the dream I'm in bed with Ann, just like I really am,
and we're making love, and she begins to laugh at me, to make
fun of me. And suddenly I realize she isn't really Ann, she is
my mother, in disguise somehow. And I'm in bed fucking my
mother! And she's laughing, saying, "I finally got you. I finally
got you!" And I'm so ashamed, so embarrassed, I just start hit-
ting her to make her stop. (Barber 1986, pp. 56-57)
This dream was related by a young man, John, who had been
arrested one night for beating up his girlfriend, Ann, although he
claimed to have n o memory of the event. Even though Ann did not
I6 WHORES OF T HE COURT
and beaten. During this procedure, the witch doctor dances around
the stake rattling his gourds until the patient's behavior improves.
T h e witch doctor believes that the patient is possessed by a spirit and
the purpose of the treatment is to scare the spirit the hell out of the
body. If the symptoms of many people who receive such treatment
quickly disappear, and given this kind of treatment one can imagine
that it is highly likely that they will, then one could conclude that the
witch doctor's treatment is effective in curing mental illness.
If we assume that the positive outcome-disappearing syrnp-
toms-supports the witch doctor's theory of psychopathology, then
we are in the rather difficult position of having to accept a theory of
demonic possession as the cause of mental illness, the common primi-
tive explanation of bizarre behavior. We must conclude that the witch
doctor knew what was wrong with his patient, knew what caused it
and how to fix it.
Most modern Americans would not accept that conclusion. T h e
witch doctor may believe he has cured his patient; the patient may
believe he was cured by the witch doctor. But the rest of us know that
there are many possible reasons for the improvement in behavior,
despite the beliefs of both doctor and patient, and we are not about to
conclude that the witch doctor has any special knowledge of mental
illness at all.
We can see that the effectiveness of therapy is logically unre-
lated to the validity of the therapist's theory of mental illness when we
are presented with the witch doctor scenario, but in the case of
modern psychotherapy we often forget it.
In the case of cancer, we don't usually make this logical error.
Although there are now successful treatments for some cancers, and
significant advances in understanding the origins of cancer, very few
patients will assert that their oncologist knows all that could be
known about cancer.
Why the difference? Why do we go the witch doctor route with
psychotherapy but not with cancer therapy? Part of the answer is that
in most types of mental illness there is no independent, corroborating
measure of mental illness except for what the patient says and does.
This is not true of cancer patients. T h e patient can feel great, go to
work, and still have cancerous tumors that can be observed in a
number of ways. Whatever he or she may say, the patient has cancer
I8 WHORES OF THE COURT
and the doctor knows it. The harder it is to verify independently the
disease process in medicine, the more likely it is that medicine will
fall into the same witch doctor trap as psychotherapy.
We have no direct, objective indicator of mental health. We
can't measure the mind. And because mental functioning cannot be
measured directly and objectively, psychotherapists are boxed into the
corner of believing the patient, and the public falls into the trap of
believing our witch doctors. The clinician has no way to verify inde-
pendently what the patient says, and the public has no way to verify
independently the clinicians' assertions about mental life.
All of us, patients, clinicians, and public alike, are willing to
accept the occasional success in therapy as evidence that therapists
are experts in causation of mental disorders and in general psycholog-
ical functioning. Our belief is quite understandable.
That the general public confuses psychology's hit-or-miss suc-
cess in making people feel better as evidence of a comprehensive
understanding of general psychological functioning is not a new
observation, although it is much overlooked these days. And the fun-
damental inadequacy of psychology as a science is not a new issue.
What is new is the extraordinary depth and extent of the accep-
tance, as a science, of the principles and practices of clinical psychology
by the older institutions of our society-by courts and police, by
judges and juries, legislators and policy makers. Our legal system has
been told that clinical psychology is a scientificdiscipline, that its theo-
ries and methodology are those of a mature science, and our legal
system has believed it. Given the deplorable state of the "science" of
clinical psychology, that is truly unbelievable.
T H E IDEAL OF SCIENCE
Science is an ideal. Some people would say that it is so much an
unreachable ideal that it is a fiction. That is not true. That so many fail
so often in so many ways does not change the nature of their endeavor.
What is it that the people engaged in science are trying to do?
They are trying to acquire knowledge about what things exist
and how they work. What distinguishes scientists from other seekers
after knowledge is their belief in and practice of a specific method-
ology for seeking truth.
Scientific methodology is essentially controlled observation of
PSYCHOPATHOLOGICAL SCIENCE
'9
how some aspect of the world changes when some other factor is
added or removed, increased or diminished in quantity. Scientists
make predictions about what lawful changes will take place under
what circumstances. T h e accumulation of these tested laws of
change-of cause and effect-makes up the knowledge base that is
the body of scientific theory. Through the testing of predictions-
hypotheses, in scientific jargon-under carefully controlled condi-
tions, the theoretical body of scientific knowledge is built step by step.
Control in the experimental testing of predictions is essential
because it is impossible to know what you are seeing if too many
things are going on at once. T h e goal of science in the experimental
testing of predictions is to reduce the number of things "going on" to
a controlled and observable level so that the results obtained can be
reliably attributed to a particular cause, not to any of a number of
uncontrolled and unknown factors.
But what makes science so powerful is a second trait that it has.
Science exists independently of the scientist. While any individual sci-
entist may claim to see something or to think that he or she is seeing a
certain pattern, such a finding is not considered valid until anyone-
skeptic, friend, or foe-can achieve the same results in an independent
experiment of his or her own. T h e findings discovered through obser-
vation in one laboratory must be replicable in another laboratory. Data
measured and gathered by one instrument must be the same as data
gathered by another similar instrument. And thus the objectivity
comes not from an individual practitioner but from a system that
demands consistent and repeatable results.
Objectivity and replicability depend too on reliable instrumenta-
tion. Data attributed to the scratch on the lens of a lab scope are not
the findings of science. Objectivity and replicability depend as well on
commonly held assumptions, consistently defined terms, and clearly
defined phenomena. When researchers cannot even agree on what
they are trying to observe and measure, it is impossible to engage in
the systematic testing of hypotheses and the logical buildup of
coherent theory.
Science depends on its practitioners to play by the rules and to be
absolutely honest about both their successes and their failures.
What distinguishes a scientist from any other seeker after truth
is exactly this. T h e scientist can be and often is wrong. A real scien-
20 WHORES OF T H E COURT
tific theory tells you, in effect, "If the theory is right, then this partic-
ular thing ought to happen under these certain conditions. If it
doesn't happen, then the theory is wrong." If a theory cannot be
proven wrong in its predictions, then it is not science.
This is not to say that every scientist faced with incontrovertible
evidence that his or her beloved theory is wrong will trash the old
without a qualm and embrace the new. Some philosophers of science
even claim that a field changes only when old scientists die off and
younger ones come forward to view the evidence with less biased eyes.
In clinical psychology, however, the imperviousness to factual
challenge is not just the don't-bother-me-with-facts mulishness of a
few stubborn graybeards, it is a legacy handed down from generation
to generation.
There are a great many ways to do science badly, and the junk
science that makes up the bulk of the body of "knowledge" of clinical
psychology manages to exemplify every one of them. T h e myriad fail-
ures of psychology as a science are not at all surprising, considering
the roots of modern clinical practice. It is impossible to understand
the essence of clinical junk science without a cursory understanding
of clinical "science" as practiced by the principal founding father, the
great man himself, Sigmund Freud.
What "scientific instruments" did Freud use to gather the data
to build his theory of the healthy and unhealthy development of per-
PSYCHOPATHOLOGICAL SCIENCE 2I
Coitus Interruptus
Freud gives a nice example of using intuition to develop his version of
scientific truth when he explains how he discovered in a patient of his
the connection between depression, sinus pain, constipation, and
coitus interruptus.
This patient had quite a few children. He was troubled intermit-
tently with anxiety, various aches and pains, and, well, constrictions,
in his sinuses and bowels and lower back. The pattern of their
coming and going was a mystery. Suddenly the symptoms ceased
altogether. Finally Freud discovered that when the patient's wife was
pregnant, she permitted him to ejaculate in the customary way, but
when she was between pregnancies and unenthusiastic about com-
mencing another, she insisted on coitus interruptus. This, according
to Freud's brilliant reasoning, caused the patient's system to back up
physiologically and psychologically, inducing the various blockages
here and there. T h e prescription for his cure, then, was obvious, if
somewhat inconvenient for his wife. (Freud was surprisingly literal in
his metaphors, prescribing both cocaine and nose surgery for other
blocked customers.)
It is beyond foolish to ask whether "research" of this order can
properly be characterized as objective, replicable, or generalizable.
T h e ordinary standards of scientific methodology don't even come
into play. Likewise, it is futile to ask whether Freud's intuitions were
falsifiable. Freud's intuitions were freely supplanted when new intu-
itions seemed to him to be more plausible. And there is no reason
whatsoever to expect any other "researcher" employing the intuitive
interpretive methodology to have the same intuitions as Freud.
"Objective intuition" is an oxymoron. Likewise, whatever "generaliz-
22 WHORES OF THE COURT
she may simply have heard about it, read about it, dreamed and fanta-
sized about it. I don't know. But neither does Dr. Lenore Terr.
T h e psychoexpert presenting a creative interpretation of a
claimant's story is authenticating that story, corroborating it,
vouching for the veracity of the story without a scintilla of data gath-
ered from anywhere but the claimant. What's the point? To tell the
court that the claimant is a truthful person? How would any psycho-
logical expert know that? Clinicians are not lie detectors. They are no
better than any judge or jury at distinguishing truth from falsehood.
Besides, lie detection is not supposed to be the function of an expert
psychological witness in court. T h e psychoexpert adds nothing to the
claimant's testimony except a fraudulent veneer of authenticity that is
utterly misleading and entirely out of place in any courtroom.
Grandmother Riding a Broom Consider the case of Richard
and Cheryl Althaus of Pittsburgh, whose sixteen-year-old daughter
one day accused them of sexual abuse. Dr. Judith Cohen of the
Western Psychiatric Institute and Clinic at the University of Pitts-
burgh diagnosed the girl with post traumatic stress disorder brought
on by sexual abuse. How could Dr. Cohen possibly know that the
allegation of past abuse was true with such certainty as to warrant a
diagnosis of PTSD? Retrospective clairvoyance?
In her defense of her diagnosis, Dr. Cohen "argued that her job
had been to treat Miss Althaus, not investigate the patient's accusa-
tions" (Associated Press, New York Times, December 16, 1994).
N o investigation. N o corroboration. N o physical evidence that
any of these highly unlikely events transpired. N o questioning, even
about the multiple pregnancies and murdered infants? No curiosity,
even about granny on the broom or the thumbscrews or maybe which
restaurant had the floor show? This is really nuts. T h e good news is
that a jury recognized that it was nuts.
PSYCHOPATHOLOGICAL SCIENCE
2 5
But a modern Jung scholar, Richard Noll, claims that the patient
was simply familiar with popular books of the time on the subject and
that Jung knew this and lied to the psychological community when he
hid this fact from his followers.
This is a notable dispute because it so closely echoes the contro-
versy over alien abduction fantasies raging around Cambridge, Mas-
sachusetts, these days. Abduction proponents argue that the alleged
abductees tell remarkably similar stories and have somehow been
insulated from the popular sci-fi culture that saturates America.
QED, they were all abducted by Martians.
How can anyone, in good faith, take such "data," subject them
to the interpretation of clinical intuition, and treat them as "evi-
dence" to support a "theory"?
Flashbacks, Trauma, and Vietnam Veteran Killers T h e most
extraordinary aspect of clinical research when considered from a sci-
entific point of view is its imperviousness to the complete absence of
material evidence considered indispensable in any other endeavor
that claims to be a science. One such courtroom favorite is the flash-
back. Vietnam veterans who hear the radio station traffic helicopter
overhead suddenly see themselves back in combat, crouch down, and
take cover. Seized by a flashback, these suffering vets load up rifles
and blow away the wife and kiddies under the misperception that the
family is the enemy.
T h e public likes flashbacks because they have such dramatic
power and fit in so well with currently popular theories of memory.
However, is there actually any evidence at all that flashbacks exist?
No. T h e existence of authentic flashbacks presupposes that memory
PSYCHOPATHOLOGICAL SCIENCE
27
about the color red or the use of detail or "negative" space or what-
ever as required by Rorschach scoring systems?
Or, vice versa, that a great many people answer religious or polit-
ical questions in common ways, or see one particular inkblot as looking
like a butterfly, says nothing at all about their possible mental illness or
lack of it, about their schizophrenia or depression, or their degree of
compliance or contrariness or whatever. Why would it?
T h e logic underlying the use of psychological tests to diagnose
people with unknown problems-that everyone with a certain type of
mental illness resembles everyone else in the labeled group, right
down to their feelings about the pope and the president, the color
red, cannibals, and butterflies-is foolish on the face of it and empiri-
cally false.
In fact, the authors of the MMPI gave up the original attempt to
use the test to diagnose various kinds of mental disorders almost
before the ink was dry on the first edition.
Anastasi explains, " w e cannot assume that a high score on the
Schizophrenia scale indicates the presence of schizophrenia. Other
psychotic groups show high elevation on this scale and schizo-
phrenics often score high on other scales. Moreover, such a score may
occur in a nomalperson" (1970, pp. 445-46; italics added).
In a nutshell, that means that the most widely used instrument
for testing personality in America has a theoretical foundation that is
pathetically weak.
Was the MMPI, then, simply abandoned as hopelessly not up to
the job? Oh, no. Of course not. Remember, clinicians are the people
who think sinus problems are caused by sexual practices. T h e current
routine is to take persons with similar profiles across the nine scales
and then try to find something else in their lives that correlates with
their MMPI profiles. By the end of 1995, there were over nine thou-
sand such published studies. That means that for just about any profile
a person displays in answers to the MMPI, the clinician can probably
find some study somewhere that correlates the profile with
something-low self-esteem, perhaps, or maybe cigarette smoking or
eating disorders.
Are these profiles meaningful? Oh, no. They are not even reli-
able. In fact, the reliability of MMPI code types falls apart after two
weeks. Two weeks! From one-third to one-half of subjects tested didn't
32 WHORES OF T H E C O U R T
even have code types in the same diagnostic grouping on tests given
two weeks apart. This is supposed to be a test of the enduring makeup
of the personality? It is not completely unreasonable to suppose that
adults might respond in much the same way from time to time on
items questioning their religious or political beliefs, for example, but
they don't. Numerous studies show that for normal college students,
more than half show different profiles even when tested again only one
to two weeks later. For psychiatric populations, the percentages who
stay the same are even lower. After a year, the stability is laughable.
Undeterred by what others might see as crippling logical and
empirical problems for both objective and projective tests, testing
advocates slog ahead with revisions, elaborations, and embellishments
of both objective and projective tests-especially the MMPI and the
Rorschach-blinding the rest of us with a blizzard of code words and
scoring systems.
T h e courtroom doubter-attorney or judge-bold enough to
challenge the validity or reliability of these tests will in turn be chal-
lenged, "Well, what about the brand-new, state-of-the-art, high-tech,
computerized scoring system, eh? Doesn't that answer your objec-
tions?"
T h e answer is "No, it doesn't." It can't and it won't until the
tests acquire a theoretical foundation and empirical reliability and the
diagnostic categories themselves achieve some degree of solidity to
give a firm foundation for their measurement. Until that day arrives,
the truly bewildering expenditure of intellectual effort to pump air
into a dead horse will remain just that. It is sad and puzzling that so
many excellent minds pass their time in just this exercise.
Neither clinical intuition nor any of the countless psychological
tests currently in use and endlessly under development can possibly be
held to be scientific instruments capable of providing precise and reli-
able data about the structures and functions of the mind, normal or
abnormal, in general or for individual cases. It is laughable and down-
right fraudulent to pretend otherwise. It is inconceivable that any sci-
entists would tout such "instruments" as the tools of their trade.
always also fails to observe the most basic of conditions for ensuring
that results can be generalized-choosing a sample that is truly rep-
resentative of the people to whom the researchers want to generalize
their findings. In the most common kind of clinical "research" the
clinician "studies" only one individual, or sometimes a few, and then
generalizes the "findings" to an indefinitely large number of other,
unknown persons.
What is wrong with that?
Let us say that you had never before encountered the dog breed
Bouvier. Let us say that the first Bouvier you encounter has blue eyes.
Do you then conclude that Bouviers have blue eyes? Of course not.
But in time you see another and another and another Bouvier, until
you have seen ten such dogs and each and every one of them had blue
eyes. Would you not then conclude that Bouviers generally have blue
eyes? Of course you would. Who would not? But, at the same time,
you know perfectly well that you might be wrong. It might be the
case that 99 percent of Bouviers have brown eyes and you just hap-
pened to have encountered ten examples of that minority blue-eyed
strain.
Because we are all aware that our personal experience is limited,
even when we have seen a number of instances that support our
hypothesis, we retain some doubt about our conclusion. In science,
the attempt is made to reduce and quantify the doubt by sampling
randomly from among all those Bouviers in the expectation that a
random sample makes it more likely that the dogs seen will resemble
those in the whole population of Bouviers more closely than would a
sample based on nonrandom personal experience. In most clinical
research, random sampling to reduce uncertainty and increase gener-
alizability is not even an issue. Clinicians often generalize from single
instances, from samples of one.
What a Single Instance Means Other than the fact that the
accumulation of reliable scientific knowledge cannot proceed based
on the ungeneralizable intuitions of individual practitioners about
individual cases, what else is wrong with depending on case studies of
actual patients?
Let us say that you are an American who has never known
anyone Vietnamese. You know a fair amount about the Vietnamese
because of our shared history, but you have never known, personally,
34 WHORES OF T H E COURT
and having your arm bitten off, people would say to you, "Just how
many tigers do you have to meet before you get the idea?" Because
one should have been enough. You should have learned. How many
times do you have to step in quicksand before you get the idea?
T h e same logic holds for the case study. If I meet one Catholic,
chaste, hardworking, and so on Vietnamese fellow, then there are
probably lots of Catholic, chaste, hardworking Vietnamese family
men out there, right? Sounds good, doesn't it? It certainly works well
enough for tigers and quicksand.
What's wrong with applying the same "logic" to people? First
off, it doesn't matter if you're wrong about the quicksand or the tiger.
A conservative approach to both cannot hurt you. Nor can it hurt
anybody else. In fact, it might well protect you. When it comes to
people, however, instant generalization has a big downside. Even if
your prototypical Vietnamese was a good guy, generalizing from him
to all Vietnamese leads only to witless stereotyping of millions of
highly individualized people. And you're going to be real disap-
pointed when the next Vietnamese computer programmer you hire
steals your software ideas and skips town with a Protestant prostitute.
When people ask you why you trusted this guy, are you going to say
to them, "Well, I knew another Vietnamese man once and he was a
great guy"? You can't say that; you would sound too stupid.
You know, we all know, that you cannot generalize from one
individual to all individuals who are members of a group, because
there is no way to guarantee that that individual is the most represen-
tative-the average-of the group. To make a reliable generalization
to the whole group, one would need to study the behavior of many,
randomly selected, and, one hopes, representative members of the
group.
In every science, the ability to generalize your findings depends
on the quality of your instruments, but it also is only as good as your
sampling techniques. If we get a good sample, we can trust the gener-
alization. Generalization is still dangerous, even with a good sample,
especially when we try to apply it to a single unknown individual, but
it is not so completely crazy as generalizing to millions from a single
example.
For these reasons, no one with any scientific respectability
would argue that the case study has any research usefulness at all
36 W H O R E S O F T H E COURT
Long before she ever met Eileen Franklin Lipsker, Dr. Terr had
become famous through her interviews with the childre~lwho were
kidnapped, school bus and all, in Chowchilla, California. These kid-
napped children showed no evide~ceof repression following what
seemed to have been a very traumatic situation-the children were
kidnapped in their bus, driven into a pit, and buried underground
with an air vent to keep them alive. As reported in Terr's book Too
Scared to Cry (1990), the children had not been traumatized out of
their wits during the misadventure, had not repressed their memories
of the events, and even years after, they were quite capable of fairly
clear and complete recall.
NOW,this is not a great surprise. In fact, many people-even far
too many young, vulnerable, defenseless children-remember their
traumatic experiences all too well. Many of these people would welcome
the opportunity to put out of their minds forever horrible memories of
months or years of war, torture, or imprisonment, but cannot do so.
Yet here we have Eileen Franklin claiming that the death of her
friend Susan was a memory so horrible that it remained hidden from
her mind's eye for twenty years. How could that be? What made
Eileen's trauma so special that it wiped out her memory?
Dr. Terr explains, "There were great differences in the whole-
ness of retained memory between the Chowchilla kidnap victims and
Eileen Franklin Lipsker. T h e Chowchilla group consistently remem-
bered everything. Yet Eileen started to repress on the very night of
the day she witnessed her best friend's murder" (1994, p. 1 I).
How is Dr. Terr going to explain away this huge discrepancy? It
would be like explaining why dropped apples sometimes rise up into
the air instead of falling down to the ground. How could that
happen?
Easy. It is a different kind of gravity.
After I met her, I realized that Eileen was what I had defined
as a Type II trauma victim-a repeatedly traumatized child.
She had always remembered, for instance, that her father was
an unpredictably violent alcoholic-this she had not for-
gotten. . . . Moreover, Mrs. Franklin was hospitalized a couple
of times for mental illness. The illness memories too might
have been frightening. All this would have added up to make
PSYCHOPATHOLOGICAL SCIENCE
39
You might think that Dr. Terr is saying that it will be easier for
you to remember a single instance of rape if you have experienced
only one than it will be if that instance is just one among dozens. She
is not. Dr. Terr means that somehow an automatic mechanism of
unconscious forgetting is triggered when you are the victim of mul-
tiple instances of abuse and not when you are the victim of only one
or a few episodes. She is saying too that the traumatic amnesia is
highly selective, applying in Eileen's case not to episodes of violent
and unpredictable paternal violence, or to displays of maternal mental
illness, but only to Susan Nason's death and some other unspecified
but no doubt repeated traumas more horrible than drunken assaults
but less horrible than murder.
This creative view of the mind is interesting, but it does leave all
people who have survived the Holocaust, or other long-term hideous
experiences like war, slavery, torture, and imprisonment, and who
remember it, in a rather odd position. Dr. Terr is suggesting either
that such experiences were not horrible enough to be traumatic and
thus cause amnesia through repression, or that somehow most of the
millions of people who find themselves in such situations are just
generally pretty resilient.
Whether George Franklin killed Susan Nason is not as impor-
tant as the misleading psychobabble poured out to make sense of
Eileen's story. To account for Eileen's denial of memory of her trau-
matic event, Dr. Terr had to create a convoluted story that turned her
previously held views on memory and trauma inside out. Fluid defini-
tions like that are clever but they do make cross-examination of psy-
40 WHORES OF T H E COURT
sexual. You say, "I am not! I have a happy wife and seven children!" I
reply, "So what? You are just defensively overcompensating for your
homosexuality."
Anything a patient says, anything at all, can be found to have a
coherent psychological interpretation despite an apparent surface
contradiction between what is said and the interpretation. You cannot
prove clinical psychological theory wrong in any respect. If you deny
my clinical explanation, or if aspects of what you tell me are inconsis-
tent with the explanation, then I have only to invoke mysterious psy-
chological mechanisms to ride right over you.
How are you going to prove that I, your therapist, am wrong?
You can't. Anything you say about your life and how you feel is per-
fectly consistent with my interpretation. Since, by definition, you
have no access to your unconscious mind, who are you to dispute my
claims about your unconscious? Good luck trying it.
Neither the patient nor anyone else, in or out of a courtroom,
can falsify the claims a clinical professional makes about the working
of the mind. Without observation of the phenomena of interest or
their reliable indicia, testability is impossible. If testability is impos-
sible, then falsifiability is moot.
gins." "No," I say. "I have looked everywhere and cannot find a single
unicorn." "You have not looked everywhere, and even if you did, the
unicorns were one step ahead of you." Stymied, aren't I? You must be
right. There are unicorns all over the place just beyond the edge of
my vision.
T h e silicone lawsuits aside, it is very hard to find any reputable
scientist who would make the Unicorn Argument even in the silent
recesses of the heart. It is fundamentally counter to scientific rea-
soning. T h e scientist believes nothing unless it is proven to be true.
"I will not believe in unicorns unless you can prove to me that uni-
corns exist." T h e unicornist believes everything unless it can be
proven absolutely to be false. "I will believe in unicorns until you
prove to me that there are none."
Clinical psychologists regularly lay claim to beliefs on the
grounds that they have not been disproved. But it is not possible to
prove that something does not exist simply because you failed to find
it. There are many possible reasons for your failure, only one of
which is the nonexistence of whatever it is you are looking for. There
are many possible reasons that people in a study do not behave as
expected other than the one the researchers hold to be true.
But true believers will die believing in unicorns. Actually, true
believers will continue to believe even in the face of incontrovertible
evidence against the belief. Everything, after all, is subject to inter-
pretation and reinterpretation. With the right frame of mind, there is
no such thing as incontrovertible evidence.
This outlook on life makes perfect sense in what are properly
considered "matters of faith." It doesn't n~akesense in the training or
practice of scientific professionals, psychological or otherwise, and it
does not make sense in our courtrooms. You cannot allow Miss
Marple on the witness stand to argue for the existence of unicorns. It
does violence to logic and terrible damage to real people's lives.
You might take the stand and claim that since you were struck
by the falling ladder, you are unable to work or to sleep and you have
shattering nightmares in which you relive the trauma of the injury
and envision your three children naked, hungry, and shivering, beg-
ging on the street with bowls, but this is going to sound a whole lot
more convincing if Dr. V.I.P. Harvard tells the court that in his pro-
fessional opinion, you suffer from the serious disorder of post trau-
matic stress syndrome.
Many experts will go even further, particularly in claims of post
traumatic stress disorder, and not only will diagnose you but will pin-
point for the judge or the jury the actual cause or agent of the trauma
that you claim to have suffered-e.g., the dangerous falling ladder.
Only another expensive psychoexpert could argue that your expert is
wrong.
It is clear that what used to be the well-guarded province of the
prosecutor or judge or jury-the determination of what wrong was
done, who is responsible for that wrong, and what the compensation
should be-are now all decisions that belong, in fact if not in law, in
the realm of the professional psychologist. Professional psychologists
have claimed a unique competence to assess such mental damages,
and the public believes their claim.
How did we get to such a state of affairs? How did we come to
THREE KINDS OF LIARS
51
Legal scholars argue about the relative weight the Court gave to
the scientists' "evidence," many claiming that, whatever the public per-
ception, it was slight, but there is no doubt that the Pandora's Box of
psychological expert testimony was now open and showering its con-
tents across the land. This occurred despite what Wallace Loh, past
dean of the law school at the University of Washington, described as
yet another "swift and caustic" reaction from the legal community.
Legal experts pointed out the methodological shortcomings and unjus-
tified inferences of the work cited by the psychoexperts in the Brown
case, and described the findings, quite rightly, as more common sense
than science. They reacted about as enthusiastically as their turn-of-
the-century counterparts had to Professor Munsterburg's efforts.
But the tide was turning in America against racial segregation,
and the Court and the public alike moved with the tide. And the
Court and the public alike wanted a scientific basis to justify what
was, after all, a major change in American political opinion. Clark
and company gave it to them.
It is interesting that in a recent column in the New York Times
addressing the issue of ethnic dormitories at Cornell University,
Clark cited no scientific evidence at all about the injurious effects of
such living arrangements on the hapless students but merely quoted
the Supreme Court in stating that "separate educational facilities are
inherently unequal" (Clark, New York Times, April 1, 1995).
T h e response of the legal community to psychologist Clark's
Brandeis-style brief was so negative that experimental psychology
generally avoided excursions into the legal arena for more than a
decade following the Brown decision. In the 1970s, the floodgates
opened. Do-gooders from the sixties blossomed into professionals
with a cause in the seventies, and experimental psychology was ready
to aid the cause. Classic research on witness reliability was refined
and replicated with more sophisticated methodology and with a
renewed sense of its critical application to important social prob-
lems-like maintaining an equitable, color-blind justice system.
By the middle of the 1980s, experimental psychologists were
testif~lngall over the country-wherever the judge would allow it-
on the confusions and distortions of memory that result from various
police interrogation techniques, and the serious difficulties witnesses
encounter with cross-racial identification.
56 WHORES OF T H E COURT
about how the mind works, what goes wrong with it, and how this
relates to guilt and responsibility, competence and insanity, diagnosis
and the effects of disorders on individuals, not to mention needed
future therapy.
Professor Loh is right about the concomitant mushrooming of
forensic psychology and the developing formulation of legal doctrines
of insanity away from the idea of good and evil and toward the phi-
losophy of modern psychiatry. T h e legal profession is still reeling
from the 1980 publication of the ambitious third edition of the diag-
nostic manual of the American Psychiatric Association. Earlier ver-
sions of the manual were inconsistent, piddling little efforts at
systematizing and regularizing the diagnoses of mental illness. T h e
third edition-the DSM-111-was something else altogether with its
hundreds of different diagnoses with fancy-sounding names, critical
symptom lists, and up-to-the-minute timely relevance. It was to the
DSM-111 that we owe today's glittering v a r i e ~of "diminishing" diag-
noses-those mental conditions, temporary or chronic, that
somehow magically diminish a person's responsibility for whatever
heinous act he or she committed, decreasing the crime with which
the person is charged or weighing in the defendant's favor when it
comes to sentencing.
job), but not for emotional pain and distress. Because of the 1991
changes, wronged employees today can recover compensatory dam-
ages for emotional pain, suffering, inconvenience, mental anguish,
loss of enjoyment of life, and other nonpecuniary losses, in addition
to wages due and/or reinstatement, any or all of which may be caused
by discrimination or sexual harassment.
Simply, this means that Congress has agreed that racial and
sexual discrimination or sexual harassment can cause mental anguish
that can, by the tiniest stretch, be classified as a genuine mental dis-
order. Mental anguish can easily be certified as a disorder by a
trained mental health professional and enhanced in degree for the
purposes of trial by the addition of a formal, perhaps Latinate, label
from the DSM.
Sexual harassment is interesting because it, like the psycholog-
ical damage it causes, is often imperceptible to others, or exists only
in the mind of the harassed. This does not mean that the mental
effects of harassment are any less real than the bodily effects of phys-
ical assault, but it does raise, once again, the troubling question of
whether it takes an expert psychologist to identify them.
cally disabled or mentally ill. Since, as we have seen, there are sev-
eral hundred ways of being mentally ill, all requiring the skilled eye
of the trained psychologist for diagnosis, it should be clear that
employment opportunities for clinicians in discrimination litigation
are vast. Not only can the clinician diagnose just about anyone with
some kind of mental disorder, but he or she can also be called upon
to testify that the discrimination suffered by the victim in the work-
place has produced still more mental trauma likewise worthy of
compensation.
Arrested Feminism
In both law and clinical psychology, the growth of the number of
women in the ranks has been exponential over the last few decades in
this country. From 1950 to 1967 approximately 3 to 5 percent of law
students were women. In 1980 that number had risen to more than
30 percent. In 1995 it stood at over 50 percent.
For the psychologists the picture is similar. In 1980 about half
the first-year doctoral students were women; by 1990 that number
had risen to two thirds. In programs granting only master's-level
degrees, the figure is 70 percent. For the academic year 1992-93, in
master's programs, over 40 percent of the faculty are female, and in
doctoral programs, it is a little over one third. In 1976, women
received just over 3 1 percent of all Ph.D.s in clinical psychology. By
1990 they received over 58 percent. (Among academics the picture is
quite the opposite, with males making up 70 percent of today's
departmental faculty and women 30 percent.)
Today, the majority of the 75,000 American clinical psychologists
and 45,000 psychiatrists are women. Most of these people have obtained
their licenses in the last twenty-five years, in the years since the modern
renaissance of the women's liberation movement. That the vast increase
of the number of women in the mental health profession coincided with
the boom years of the women's liberation movement has had significant
consequences for the interface between psychology and the law.
THREE KINDS OF LIARS 67
that claim to value the role of science in the education and practice of
clinicians. T h e idea is that students will be taught not only to perform
diagnostic assessment on patients and to implement courses of treat-
ment for them but also to regard scientzjic research as an integrated part
of their professional lives, not just as students but in their practice after
graduation. What do students in a Boulder model program study?
students take are closely guarded secrets. They must be. Broad dis-
semination of the material covered in the courses and open admission
for graduate students of all academic stripes would not only demystify
the clinical courses but would subject them to the same degree of aca-
demic rigor-and respect for the standards of science-as any other
graduate courses. Amalgams of rhetoric and religion, most clinical
courses would dissipate in the thin air of reason.
What would become of the initiates if the rites of initiation were
open to the public? A priesthood without mystery is a priesthood
without authority. T h e authority of psychotherapists is absolutely
essential if they are to maintain the enviable position of power in law,
medicine, and education they occupy today. Who would let persons
with no authority decide that a serial rapist is cured, that a murderer
will kill no more, that a killer was forced into the act by childhood
sexual abuse? What government or insurance company would let per-
sons with no authority bill them for millions of hours of "therapy,"
for billions of dollars of treatment? Surely not my government or
insurance company. If clinical psychology is to maintain the fiction
that it knows what it is doing with respect to all these difficult issues,
a mantle of secrecy over the content of their courses is essential.
The expert did not even examine the woman because his clairvoy-
ance made that unnecessary (Mulvihill, Boston Globe, June 30, 1994).
to educate the great numbers of children who are failing in our inner
city schools.
Who can blame future clinicians for avoiding most of the
research-based courses? These classes are incidental to the healing of
most wounds, they are irrelevant to the saving of souls. It is no sur-
prise that psychotherapy practitioners fail to learn the pathetically
limited scientific body of knowledge that makes up the field of con-
temporary research psychology.
Moreover, most of their teacher-practitioners share their view.
This is obvious when you look at the transparently flimsy require-
ments for demonstrating comprehensive knowledge of the field of
psychology. Graduate students quite rightly conclude that the clinical
establishment itself holds cheap such scientific knowledge as psy-
chology does have.
SCIENTIST-PRACTITIONERS
So where does that leave our Boulder Model of the scientist-practi-
tioner? About where you would expect it. Down the tubes of impracti-
cality. For this approach to work, both the teacher-practitioners
themselves and the students would have to genuinely embrace the
model. Both teachers and students would have to adopt the skeptical
attitude of the scientist, not the believing frame of mind of the priest.
They cannot do that. They see themselves as priests, and what does a
priest want with statistics, research methodology, or cognitive biology?
Certainly there are some teachers and some students-even those
who actively practice psychotherapy-who wholeheartedly embrace the
role of scientist-researcher-clinician. This is particularly, but not exclu-
sively, true of those whose interests lie in the more biological branches
of psychology. These clinical psychologists often specialize in neuropsy-
chology or psychopharmacology or epidemiology, or even in traditional
behaviorism. As scientists, they know they can be wrong and often are.
They do not share the mind-set of the do-gooder priest healers, nor do
they partake of the willful ignorance so common among psychothera-
pists. The trouble is, we just don't have enough of these people.
In clinical fields, there must be ten priests for every scientist, or
is it one hundred?
T H E TRAINED CLINICIAN
Since the knowledge base is completely missing for nearly all the
decision tasks undertaken by forensic clinicians, it should come as no
LEARNING TO READ T E A LEAVES
87
LICENSING
Starting in the early 1970s the various psychological factions strug-
gled to expand state licensing for mental health providers beyond the
sole reach of medical psychiatrists. Year by year, field by field, the
imprimatur of licensing gradually embraced psychologists, coun-
selors, psychiatric nurses, and then social workers in an ever-broad-
88 WHORES OF T H E COURT
ferent parts and functions of the body closer together. I have no idea
what that means, but students were instructed to "Breathe deeply.
Deeper, deeper. Breathe through your genitals!" I'm not sure how
well my colleagues mastered this exercise because they both broke
out in giggles at this point in the story, but I'm sure the experience
was valuable.
Aqua Genesis
Below, Steve Moen, the defendant's attorney in a 1993 personal
injury trial in Seattle, is asking Kate Casey, the plaintiff's therapist, to
explain to him, on the witness stand, the meanings of various extracur-
ricular "trainings" listed on her rCsumC.
Here the judge, Dale Ramerman, asked Ms. Casey, "One was
prenatal and what was the other"? She replied, "Preverbal experi-
ences." Either not hearing or not understanding, he said, "Pre-
verbal?" She explained kindly, "Preverbal. Before the age of nine
months."
The attorney then picked up the questioning again and asked
the clinician, "Is it your understanding that in the process of Aqua
Genesis memories can be recovered from both the prenatal and the
preverbal periods of one's life?" She replied, "Yes."
She said, "Yes." And we have proof that she is right.
The dialogue below is actual testimony from this same civil
injury trial in which the plaintiff is explaining to the defense attorney
how this therapist took her back in time so that she remembered
what it was like to be in the womb.
The attorney asked her, "What can you tell me about prenatal
work?" The patient/plaintiff told him, "My understanding of that is
90 WHORES OF T H E C O U R T
they have you reenact some events. So prenatal would be maybe some
experiences you had prenatally that were very difficult." T h e attorney
said very politely, "Can you give me some specifics as to what your
experience was in that?" T h e plaintiff replied, "I remember-the
specific piece that I remember doing was remembering having a very
tough time breathing. Feeling really suffocated, really tight." In an
attempt at clarification, the attorney asked, "What did that have to do
with the prenatal state?" She said, "That's what I experienced in the
womb prenatally." Still pushing for clarification, the attorney asked
gently, "Can you describe for me specifically, though, in the therapy
context, the connection with your prenatal state and what you were
doing in therapy? Can you just give us kind of a view of how that
therapy worked? I'm asking you to describe what happened." T h e
patiendplaintiff replied, "You reenact being in the womb. And I said I
remember feeling I had a hard time breathing and a suffocating
feeling."
T h e judge said then, "Let's take a five minute break or so"
(Mateu v. Hagen, 1993).
In the course of her "therapy," this patient, who became a plain-
tiff in a recovered memory suit, came to believe such foolishness
because of her trust in the training and knowledge and authority of
her therapists. That is unforgivable.
Attorney: Now, obviously, in the prenatal state the human being has
no vocabulary or speech, right?
Therapist: It's my belief that they don't. [Cautious little doggy, isn't she?]
Attorney: And so if a prenatal memory is recovered, how is it
expressed?
Therapist: It's usually expressed through the body, through a body
position. If one is an adult or a baby it may be expressed through
crying. (Mateu v. Hagen, 1993)
Transactional Analysis
T h e crucial importance of prebirth experiences is taken as an article
of faith by many modern therapists, as is the vital role played in adult
life by the inner child, the progeny of Eric Berne, the founder and
promulgator of transactional analysis.
WHORES OF THE COURT
92
H e explains it so:
Age Regression
As Ms. Casey explained in her testimony to Mr. Moen: "My belief is
that within us we all carry different ages that we've been in the past.
LEARNING T O READ T E A LEAVES
93
Entrepreneurial Psychotherapy
Many such course tapes are available for laypersons (or is that future
patients?) as well as for practitioners. This happy circumstance can be
thought of as a mental health community outreach program, I guess.
For example, Dr. Brian Ford of Bellevue, Washington, offers two
series of what he calls trance-induction tapes, "Dealing with Life" and
"Happy Childhood." As part of his trial testimony in the civil injury case
above, he explained the "Happy Childhood" series so: "For instance, if I
were to take you through a guided visualization and you were to
imagine a scene, a positive scene, say with a parent, and you were to do
that in a relaxed, even a hypnotic state, then after you went through that
visualization, you would remember it. . . . So, in short you'd remember
having had the experience on tape" (Mateu v. Hagen, 1993).
Dr. Ford explained this process during his testimony in a recov-
ered memory civil trial, and followed up by saying that if people can
be brought to relax and imagine a fantasized past, then they will come
to remember that past as part of their own childhood, their "happy
childhood."
This trance tape entrepreneur was until October 1996 a licensed
psychologist in the state of Washington. That month he lost his license
for twenty years for having an affair with a patient. H e did not lose it
for messing with people's memories with his "Happy Childhood"
trance tapes. And why should he have? He is but one of many thou-
sands of such entrepreneurs all over the counuy peddling their non-
sense both inside our courtrooms and out.
out the debris of the past. . . . There will be one induction exer-
cise using the rattle and drum, followed by a guided visualiza-
tion into metaphysical time. Please bring a pillow and blanket and
wear comfortable clothing. ($75.00). (Interface;italics added)
Did I have to shop around all over the country to find these far-
out examples just to scare you? No. This last little batch of offerings
is all from one source, an outfit in Cambridge, Massachusetts, called
Interface, and the illustrations I have chosen are really quite conserv-
ative. I didn't put in the one taught by the lady who has a private
practice in animal telepathy, and, believe me, there are a great many
such offerings at Interface. But not to worry. Their course catalog is
filled with M.D.s. Ph.D.s, M.A.s, R.N.s, Ed.D.s, M.Ed.s, M.S.W.s,
and so many other strings of initials that only a truly paranoid student
could feel anything but the greatest trust in the competence and
authority of the teachers and the worth of the offerings.
You can access your angel through guided visualization and
meditation or you can access the intrauterine you. You can relive the
suffocation of the womb or fly back into the freedom of a former life.
You can float back to age two in the hot tub or float a margin loan
into potential investment space. You can create a happy childhood for
yourself or for your "significant other." You can learn hypnosis-
Ericksonian or otherwise-and never go on a diet again! You can do
all these things and more with the help of mass distribution psy-
chotherapy tools. Fortunate you!
People believe this stuff. Life is hard and unfair and frightening.
People want to believe, they need to believe, in magic and in the pos-
sibility of effortless control over their lives and their miserable fates.
This sort of nonsense, taught by lecturers with their perfectly correct
but wildly misleading titles of "counselor," "psychologist," "psychia-
trist," and "social worker," is not harmless. It is the inevitable, logical,
and pernicious extension of clinical psychologists' continuing to grasp
the fig leaf of science while engaging in an increasingly blatant appeal
to humanlund's most primitive and desperate needs.
are actually worse at it, blinded as they are by the illusion of their
own expertise. Diagnostic categories are not validly established and
diagnoses cannot be rendered reliably. Neither can therapy be reli-
ably used to change the behavior of our citizens, juvenile or adult,
violent or simply wayward.
Psychologists have no special ability to read into the soul-or
mind or psyche-of another human with any more accuracy than the
rest of us. Upon finishing graduate or medical school they are not
given special soulographs or psychometers that let them plumb the
depths of anyone's psychological being. There simply is no mental
stethoscope, no matter how much our justice system wishes there
were.
Clinicians are not trained to perform the myriad tasks the legal
system asks them to perform because no body of knowledge exists to
support such training. It is a sorry state of affairs, but it is the only
state we've got.
Getting Away with Murder
Criminal Diagnostics
tried, convicted, and sent off to the slammer, juries being notori-
ously unsympathetic to the crime of burning people alive as they
sleep.
Drawing on fashionable dysfunctional family theory and tradi-
tional legal theories of diminished culpability, Arrested Feminist cli-
nicians, along with their attorney cohorts, crafted a novel defense for
the women in these cases. According to their reasoning, these bat-
tered women had been so abused by their men that they had lost the
ability to act rationally, lost the ability to premeditate their actions,
lost the ability to foresee the consequences, and lost the ability to
control their behavior. T h e abuse they received at the hands of their
men had rendered them utterly impotent, utterly without responsi-
bility for anything they might do, and utterly without responsibility
for the killing of their batterers.
Lenore Walker, who almost graced our television sets as a
defense witness in 0. J. Simpson's criminal murder trial, claims to
have successfully employed the BWS defense in over 150 murder
trials, though forensic psychologist Charles Patrick Ewing and others
have questioned the basis for these claims. Reviewing twenty-six cases
in which expert testimony on BWS was admitted, Ewing reports that
in seventeen, roughly two out of three, the battered woman defen-
dant was convicted of murder, manslaughter, or reckless homicide
(Stark 1995).
In one third of the cases in which the BWS defense was allowed
to be presented, the woman was acquitted. The same study found
that in 100 percent of the cases in which the evidence was excluded,
the women were convicted.
The women mounting a battered woman syndrome defense for
their crimes claimed that they had been driven mad as a consequence
of longume abuse at the hands of their men.
Yes, mad. The most poisonous, dangerous-deranged!-element
of the battered woman syndrome defense is not the recognition that
the ordinary rules of self-defense do not apply well to situations in
which the two participants are of greatly differing physical stature.
That would almost make some sense. We do, after all, have a number
of laws that seem to rest on the assumption that if two 170-pound men
are having a dispute wherein, for example, one fellow says to the other,
"I'm going to kill you, you son of a bitch," and lunges forward, and the
I02 WHORES OF T H E COURT
second guy whams his fist into the first's esophagus and crushes his
windpipe, killing him, then it is not murder but self-defense.
Now, for a number of reasons like size and acculturation, this
scenario runs into difficulties when we uy to apply it to a man and a
woman in a dispute. Women's advocates might well have made the
claim that the customary male response to repeated insults and threats
is unavailable to most women since the probable outcome of
attempting to punch a threatening, insulting male is a vicious beating
or even death at the hands of the male. Since escape from the home
into another life of economic strength and safety is generally an alter-
native that exists only in the minds of prosecutors, the battered
woman in such a situation might well feel that knocking her assailant
off as he sleeps or is passed out drunk is her only realistic way out of
the situation. Given the number of women who try so hard to escape
these men through the legitimate means of separation and restraining
orders and who in the end are killed by them, she may well be right.
Is this inequality of strength and combat skill the basis of the bat-
tered woman syndrome defense? Of course not. We're dealing with a
mental illness syndrome here. That a battered woman kills her man as he
sleeps is not the sensible act of a person trapped in an impossible situa-
tion from which society will not rescue her, Oh, no. It is the crazy act
of a mentally disordered woman driven mad by the conduct of her
man. Arrested Feminist attorneys and the feminized psychology estab-
lishment have to see it that way. To see it as an act of power, of taking
control, of actively, willfully killing the enemy, is completely out of
keeping with seeing all women as the helpless victims of men. They'd
rather see them as crazy than as taking charge as well as they can given
realistic constraints. That is nuts.
Let's get the syndrome out of this defense and name it for what
it is: women taking the law into their own hands when the law refuses
to protect them from their men. Whatever juries might make of that,
at least they won't be blinded by the dust of a pseudo-syndrome.
Under this view, the white males who constitute the establish-
ment power structure in the country today are seen as the only mem-
bers of society who have sufficient power to assume the general
burden of accountability. Thus, white men as a group are responsible
for the pain felt not only by women and children but by the disadvan-
taged as well.
Minorities outside the white power structure-principally blacks
and Hispanics but also gay people, immigrants, drunks and druggies,
the disabled, and . . . well, everyone who somehow qualifies as a
member of the great disadvantaged class-are seen as morally equiva-
lent to adult abused children. As such, they are not, cannot, and should
not be held responsible for the shape of their lives or for changing that
shape by taking any action. Broken in childhood and manipulated by
outside forces they cannot resist, they cannot be held accountable for
their behavior no matter how heinous the crime or how innocent their
victims. This makes it impossible to conceptualize members of the
"disadvantaged7' as the masters of their own fates, as the captains of
their own souls. As adult abused children, they could not be.
This grotesque characterization of the societal family, like the
equally grotesque characterization of the nuclear family on which it is
based, throws the weight of scientific psychological authority behind
traditional liberal characterizations of society's problems and greatly
strengthens liberal clout, especially in the legal system.
T h e characterization of disadvantaged and minority groups as
infantilized victims of powerful white males automatically generates a
million excuses for every ~ossibleminority failure or crime. This
instantaneous dispensation from any responsibility for any wrongful
act at all extends itself in a drowning wave of compassion even over
the faces of the cruelest and most callous of murderers, including, for
example, the youths who viciously beat and raped and murdered
lGmberley Rae Harbour in Boston, and their New York counterparts
who beat and raped and attempted to kill the jogger in Central Park
several years ago.
In his second trial, Osby was found guilty of two counts of capital
murder on November 10, 1994 (AP, New York Times,November 13,
1994).
Perhaps the best known of the cases in which some version of
the black rage defense has been invoked is that of Colin Ferguson,
the 1994 mass murderer on the Long Island Rail Road who chose
exclusively white, Asian, or "Uncle Tom" black victims (defined by
Mr. Ferguson). H e killed six and wounded nineteen passengers on the
commuter train. H e was convicted and sentenced to more than two
hundred years in prison.
I 06 WHORES OF T HE COURT
murder and he was executed seven years later, in 1989, by the state of
Louisiana.
But as Michael Davidson, in a 1988 William and Mary Law
Review article on the history of PTSD, wrote, "Vietnam veterans have
used PTSD successfully as an insanity defense against charges of
murder, attempted murder, kidnapping, and drug smuggling. PTSD
has also been used to mitigate sentences in convictions for crimes
such as drug dealing, manslaughter, assault with intent to commit
murder, and even tax fraud" (p. 423).
PTSD provides a compelling defense for both the public and
the media because it has such a straightforward appeal to psychocul-
tural mythology disguised as common sense. PTSD became popular
during the minor epidemic of postal workers coming to work berserk,
toting submachine guns they used to mow down their fellow workers.
Because the Postal Service has an affirmative action program for vet-
erans, most of these fellows were Vietnam-era vets. (Not all of them
had been to Vietnam, but that's getting picky.)
Now, almost all of us can sympathize with the urge to blow at
least some of our fellow workers to lungdom come, but we don't do
it. It is not normal to blast away at people no matter how angry you
are about the other fellow's promotion. So when someone comes to
work spraying a submachine gun all over, we conclude that he is sick
indeed.
How might a Vietnam-era vet have gotten sick? Well, from that
sick war. For some people, the Vietnam war was sick because so many
people did not support the actions of our government or of the men
who were sent there to fight and to die. For others, the war was sick
because of the apparent absence of clear-cut issues of good and evil.
It is not hard to accept that living through such a hell could
poison the mind. It is not hard to believe that the terrible experiences
of that war could so sear the mind that the soldier never wholly
returns home, and although he may seem to function well, he is never
truly okay. Along comes the straw that breaks the camel's back, and
he snaps. H e feels he is in hell again and he responds as he was
trained to respond to hell. H e blows enemies away with a gun.
That makes a great deal of intuitive sense in today's America,
particularly when the defense is claimed by veterans of a war about
which so many Americans feel conflicted. (Recently in Boston, the
I 08 WHORES OF THE COURT
lawyer for a Mafia hit man who had served in Korea briefly floated
the PTSD excuse for his client.)
In its first five years of use [I980 to 19851, the PTSD defense
has helped at least 250 Vietnam veterans get shorter sentences,
treatment instead of jail, or acquittals. (Davidson 1988, p. 423)
That statistic should give all of us pause since some experts esti-
mate that as many as 800,000 Vietnam combat veterans suffer from
moderate to severe symptoms of PTSD. (Estimates vary from about
15 percent to 70 percent.)
Psychologists come along and validate our psychocultural beliefs
about the fragility of personality and its vulnerability to stress, and
tell us pseudo-science stories about the almost magical manipulation
of memory by trauma. It was psychologists who came up with PTSD;
it used to be called combat fatigue, and before that shell shock, and
we now have an authoritative, scientific diagnosis to support what
seems to us to be only common sense.
Modern feminist clinicians like psychiatrist Judith Herman of
Harvard have adopted the notion that rape and combat are pretty
much the same thing, so now the noncombatant who has experienced
sexual assault, abuse, or battering can also claim to suffer from
PTSD. It's an equal opportunity disorder.
For defense attorneys who would like an up-to-date guide on
how to use post traumatic stress disorder as a defense at trial, and for
prosecutors who would like to blow them out of the water, I strongly
recommend the article by Roger Pitman, Landy Sparr, Linda Saun-
ders, and Alex McFarlane, "Legal Issues in PTSD" in the 1996 book
Traumatic Stress, edited by Bessel van der Kolk and others. It is also
quite handy as a guide for using PTSD in disability suits.
this: If the defendant does not pass #1, he or she will not get to #2. If
the forensic clinician does not determine that the defendant can assist
in his or her own defense, then that defendant will not stand trial for
the crime of which the defendant is accused.
If the judge chooses to bypass or ignore the recommendations of
competency evaluators, the trial verdict is in grave danger of being
overturned.
On January 26, 1994, the Massachusetts Supreme Judicial Court
found the absence of a disabling diagnosis reason to overturn the
murder conviction of Alfred J. Hunter, who was charged with
shooting his wife on May 9, 1989, then stealing a plane to buzz
Boston while firing an assault rifle.
T h e court ruled that the trial judge erred because he did not
hold hearings to allow a court psychiatrist to testify that the accused
was mentally incompetent when he confessed his crime to his jail-
house cronies.
Why did the Supreme Judicial Court believe the psychiatrist
was a better judge of character than the judge himself?
This court's decision incidentally provides a piece of pretty good
advice for prospective murderers: During or after the murder, do
something so gruesome or so bizarre that you get yourself shipped off
to the criminal funny farm for evaluation. This gives you a shot at a
diagnosis of some form of diminished responsibility. If you do get
convicted despite the best efforts of your psychological experts to slap
a mentally ill label on your actions, then the disabling diagnosis can
114 WHORES OF T H E COURT
SUPREME BAMBOOZLING
In 1989, Byron Cooper brutally killed an eighty-six-year-old man in
the course of a burglary. An Oklahoma jury found him guilty of first-
degree murder and recommended punishment by death. T h e trial
court imposed the death penalty and the Oklahoma Court of Crim-
inal Appeals affirmed the conviction and the sentence.
The case went to the United States Supreme Court. The fol-
lowing is taken from the Supreme Court's summary and judgment in
that case.
Mr. Cooper's competence to stand trial was assessed on five dif-
ferent occasions before and during his trial for murder. The first time,
a pretrial judge relied on the opinion of a clinical psychologist
employed by the state and found the defendant incompetent to stand
trial. He committed him to a mental hospital for treatment. After three
months in the hospital the defendant was apparently cured of his
incompetence and was released from the hospital. Now the trial judge
heard testimony from two state-employed psychologists who disagreed
with each other about the defendant's ability to participate in his
defense. The judge agreed with the psychologist who said the defen-
dant was competent, and ordered Mr. Cooper to stand trial for murder.
One week before the trial was to begin, the lead defense attorney
raised the question of competence yet again, explaining to the court
that Cooper "was behaving oddly and refusing to communicate with
him. Defense counsel opined that it would be a serious matter 'if he's
not faking.' " The judge listened but decided again that the defendant
was competent.
Then, on the first day of the trial, the defendant's bizarre behavior
~romptedthe court to conduct yet another competency hearing, this
time with testimony from several lay witnesses, a third psychologist,
and the defendant himself. Bizarre behavior means that the defendant
refused to wear street clothes for the trial because they would burn
him, communed with a spirit who gave him counsel, feared that his
attorney was trying to kill him, and remained throughout much of the
hearing crouched in the fetal position, talking to himself.
I 16 WHORES OF T HE COURT
the casebook for the DSM. Perhaps he read it before meeting with his
experts. Might as well cover all the bases. (Actually, since Rosenthal did
not cooperate with his competency evaluators-funny concept that, is
it not?-and was subsequently convicted of first-degree murder, per-
haps his appeal on incompetency grounds will prevail.)
Of course, this whole business of putting on opposing experts is
by no means cheap.
[For Rosenthal's trial, t]he state hired Dr. Park Dietz of New-
port Beach, Calif., one of the nation's leading prosecution
psychiatrists, reportedly at $350 an hour plus first-class
accommodations, food, expenses and airfare.
Prosecutor Martin Murphy would only reveal that Dietz
conducted 15 hours of interviews, but didn't say how much
time he spent on reports the state never introduced.
The state will also get a bill for at least 160 hours of work by
Dr. Alison Fife, a psychiatrist who charges up to $250 hourly.
But they faced a defendant with deep pockets, a high-profile
case and the almost unheard-of fact that Rosenthal had cut out
his wife's heart and lungs. . . . The defense sunk tens of thou-
sands of dollars-they would not reveal numbers-into
Chatham psychiatrist Dr. Marc Whaley, Belmont psychiatrist
Dr. Larry Strasburger and Dr. James Butcher, a national expert
on a personality test called the Minnesota Multiphasic Person-
ality Inventory (Talbot, Boston Herald, November 8, 1996)
Hey, if you have to ask how much it costs to be found crazy, you
can't afford it.
Dr. Dietz said. If the luller changed clothes and washed off
the blood, he probably knew what he did was wrong. (Butter-
field, New York Times, March 4, 1996)
Not so, says Dr. Phillip Resnick, testifying for the defense:
Dr. Resnick testified that Mr. Salvi knew the legal conse-
quences of his actions and tried to prevent his capture. But,
Dr. Resnick insisted, Mr. Salvi's delusions governed his mind
so completely that he was unable to understand the "moral
wrongfulness" of his acts and . . . was legally insane. (Butter-
field, New York Times, March 4, 1996)
is none except from the accused's own mouth, but who can dis-
pute it?
Are there objective diagnostic tests to see if the accused is telling
the truth? Well, no. Do the psychoexperts actually have any objective
basis at all for distinguishing false claims of delusions from true delu-
sionary claims, so to speak? No, of course not. How could they?
There is no such thing as a secret delusionary litmus paper given out
in graduate school.
T h e most impressive thing about this particular diagnosis-
brief psychotic disorder-however, is the retrospective clairvoyance
the evaluator must possess in order to reach it.
After all, this is a twenty-four-hour disorder that would quite
naturally-if you will pardon the expression-have come and gone
long before the psychoexpert could even have laid eyes on the defen-
dant. How is the clinician supposed to be able to diagnose what the
patient's condition was at the time of the crime last week or last
month or last year? Apparently courtroom diagnosticians all possess
the highly specialized skill of retrospective clairvoyance.
D o clinicians actually do this? D o judges and juries actually
listen to expert psychological testimony that defendants suffer from
fleeting, in-the-past, incapacitating mental illnesses that, however
brief, nevertheless should absolve the accused of guilt for the crime?
Oh, yes.
T h e good news is that the jury didn't buy the story, but what is
this pseudo-witness doing in a courtroom testifying about criminal
responsibility?
T h e psychiatrist concluded from Eric's mad switch story that
Eric suffered from an incapacitating explosive disorder-mad
switchitis-that washed away the guilt for the murder of an innocent
child. Retrospective clairvoyance allows this expert to know with cer-
tainty that this disorder was incapacitating Eric at the time of his
crime even before the expert had ever met Eric. Apparently this clini-
cian's intuition functions as a time machine to allow him to see into
the past. (He could not possibly have believed that the mad switch
tale alone was sufficient to make a reliable and accurate diagnosis of a
mental illness so serious as to excuse this crime.)
Seemingly it would take tremendous nerve to get up on the wit-
ness stand and testify as to the mental condition of a defendant at a
time weeks or months before the clinical exam, but there seem to be a
good many clinical practitioners with more than enough nerve. More-
over, retrospective diagnostic clairvoyance is not confined just to
forensic evaluations in murder cases. It is all over the courts.
Bipolar Embezzler
In a Boston trial in which a prominent cardiologist was accused of
embezzling a fair amount of money from both colleagues and hos-
pital, a defense psychoexpert testified confidently as to the cardiolo-
gist's state of mind at the time the money went missing:
LIBERAL INSANITY
Liberals who have swallowed the claims of mental health profes-
sionals about everything from the reliability of diagnosis to the effec-
tiveness of treatment find themselves these days in an interesting
dilemma.
Occasionally, persons who have been treated for mental illness in
the past commit crimes that catch the public's attention. In Massachu-
setts two years ago, one inmate at a new neighborhood halfway house
attacked a staff member while another attacked one of the neighbors.
In Maine recently a past patient stabbed to death two elderly nuns in a
cloistered convent; in New York City a fifteen-year-old patient was
accused lately of shoving a young woman to her death on the subway
tracks during a robbery attempt; in Massachusetts a mental patient
who murdered his parents was seeking release in the spring of 1996
after two decades of treatment, having been found not guilty of
parental murder by reason of insanity.
All cases like this create serious difficulties for the politically
correct. After all, if the mentally ill are just like folks with arthritis,
then they are no more dangerous to their neighbors than are the
arthritic. Yet, at the same time, when the officially designated men-
tally ill commit horrible crimes, liberals say that it is not the mentally
ill persons' fault; it is the fault of their illnesses.
Even the New York Times recognizes that that is a no-win char-
acterization, so it has come up with a brilliant way out of the
dilemma: Crimes committed by the mentally ill are the fault of the
Ij2 WHORES OF THE COURT
The proof of our success is in our high referral rates from the
courts and the probation officers. And we are very near national
accreditation from the Association for the Treatment of Sex
Offenders. We do good work here. . . . It's a simple fact. If we
weren't successful, we wouldn't be in business.
Shari P. Geller, Fatal Convictions, 1996
she would file for divorce, he shot and killed her, using a
police service revolver that belonged to his son by his first
wife. He was released from prison in December 1993.
(Weizel, Boston Globe, December 10, 1993)
into psychological treatment. Over the last twenty years the number
of batterers arrested has increased by 70 percent, according to a
report by Jane11 Schmidt and Lawrence Sherman in the American
Behavioral Scientist in 1993, but still, most batterers, even when
arrested, do not serve time in prison. We seem to have an unspoken
assumption that men who kill strangers are bad, but men who kill
female friends, lovers, and wives are just mad.
And as madmen, as men suffering from mental disorders, surely
they can be helped by psychotherapy. Right?
now? At about a 78 percent chance that you, the patient, will get
better as a result of having gone into therapy, regardless of what that
therapy is. So far, we haven't even considered what goes on in all
those therapy sessions. It doesn't matter; you should get better
anyway for all these other reasons.
So it is at least possible that clinical practitioners can help people
who want to feel better or understand more about their lives feel
better and understand more even if it is for a number of reasons that
have very little to do with formal training and knowledge.
But I say this once again because it is critical: T h e fact that an
individual can be helped tells us nothing about the validity of the psy-
chological theories of the helper. T h e actual causal events producing
his or her behavior are unknowable.
Perhaps familiarity with the treatment used by the faculty of the
famous Boston Trauma Clinic to treat PTSD will plant the necessary
seed of doubt in even the most gullible past or prospective patient.
This procedure, by the way, is held by consensus of all the faculty to be
absolutely the most effective in treating PTSD, according to Dr.
Bessel van der Kolk, on staff at the clinic, in a colloquium given at
Boston University in October 1996.
To cure PTSD, the therapist has the patient concentrate on the
past traumatic event-this only works if he or she can remember it,
of course-while staring at the doctor's fingers as the doctor wags
them slowly back and forth, back and forth, in front of the patient's
eyes. T h e patient follows the wagging with his or her eyes. Dr. van
der Kolk suggested that each session last ninety minutes and that
after only three sessions, the patient would be cured! Now, isn't that
amazing? This therapy technique is called EMDR, for Eye Move-
ment Desensitization and Reprocessing. (I can think of another name
for it.)
It certainly goes to show that understanding how the mind
works has nothing whatsoever to do with "curing" modern "mental
disorders." I wonder if EMDR would work as well if the psychiatrists
of the Trauma Clinic wagged gourds and rattles in front of the
patients' eyes. Hard to imagine why not.
T h e lack of connection bebizen the effectiveness of a therapy
ri-chnique and the validit) of the ther~pist'spsychological theories
will not be evident to happy patients, or even to most judges, because
XlUSlC THERAPY FOR WIFE KILLERS
than the rule for every type of disorder examined and every
type of therapy we have looked at-psychodynamic, behav-
ioral, cognitive and family therapy. When one considers even
more intractable problems, such as addictive behaviors, schiz-
ophrenia and personality disorders, the clinical significance
data are even more bleak. The only exception we have found
. . . to these modest recovery rates is the cognitive behavioral
treatment of panic disorder. (Jacobson 1995, p. 44)
hend with heavy work boots and then used a kitchen knife to
remove her organs, according to trial testimony. Gingerich's
WHORES OF T H E COURT
Insight Seekers
Let us say your therapist is an insight specialist. What is he or she
after? Insights, of course, but what's an insight and who is supposed
to have them, you or your therapist?
An insight occurs when you suddenly realize that your mother
didn't really want any more babies after Harry, your much older
brother, was born, that she resented having to work full-time until
she was almost sixty years old, and never having any money to spend
on herself, or any time for herself and her husband.
Why should the sudden realization that your mother wished you
had never been born make a difference in your life? N o reason.
There is zero evidence that therapeutic "insights" have any effect on
the patient's life at all. Why would they? You grew up the way you
grew up; you live the life that you live. Suddenly seeing your mother
through a different lens won't change any of that. Insight theory is
nothing more than romanticized wishful thinking. Having an insight
about your mother's feelings from thirty years ago is not the same as
discovering that your spouse is having an affair today. T h e latter is an
"insight" that might well have a significant effect on the course of
your life.
By the way, where is the evidence that any particular "insight" is
correct? How do you know that your mother really didn't want any
MUSIC THERAPY FOR WIFE KILLERS
more babies after Harry was born? Why do clinicians give such
weight to these so-called insights, to their own interpretations of the
patient's revelations?
Simple. Because they make sense. Ah, the lure of the coherent
narrative.
Given a cultural backdrop of pervasive Freudianism, it only
takes acceptance of a few basic assumptions for the patient to accept
the therapist's story as true, to accept the insights as valid: To wit:
T h e mother-child relationship defines all love relationships in the
future, and if mother was hostile but in denial she constantly gave the
poor child mixed messages about love and acceptance, which resulted
in an emotional insecurity that makes the adult child a demanding
and conflicted lover today, with an unl~appymarriage entirely due to
the mother's initial ambivalence.
Is that sad story really the only possible narrative to account for
the emotional ups and downs of the patient's life? Of course not, but
apparently only an overly critical person would object that there are
probably any number of relationships, experiences, attitudes, expecta-
tions, and patterns of behavior that go into determining the quality of
a marriage or parenthood; that no one has the ability to re-create the
complexity of the mother's many feelings and the way they changed
over time and expressed themselves in innumerable actions and omis-
sions; and that it is quite posible to write dozens of s t o r i ~ to
s fit the
few known "facts" of the case.
Any story that "makes sense" to therapist and client is consid-
ered not only good enough, but necessarily mde.
Dr. Lenore Terr gives a fascinating and highly disturbing
account of the process of Eileen Franklin discovering "true" insights
about her father, George:
It is nice that Dr. Terr felt satisfied by Eileen's creative turn, but
didn't she think it a little odd that Eileen changed her story only after
the prosecutor's investigators expressed doubt about it?
Every therapist has encountered any number of "insights" that
are all too soon replaced by newer ones. Why are they allowed to tes-
tify otherwise in court? Therapists know that so-called insights can
be both wrong and dangerously misleading. They know that memo-
ries can be false. But they need to hold on to belief in the validity of
insights to make sense of the whole therapeutic process in which they
are engaged.
They also need to believe in insight if therapy is ever to be ter-
minated, since illuminating insights are supposed to provide the key
that leads to psychodynamic resolution and the end of distressing
symptoms. (Freud, oddly, both disclaimed the process yet followed
the practice.) That some people remain years in therapy with the
same therapist might lead one to believe that there is a certain defi-
ciency in insight theory or else a certain insight deficiency in the par-
ticular relationship, but it's not necessarily so.
More likely, these long-term clients, like Woody Allen, have
therapists who are into emotional support rather than insights.
express feelings in therapy that you didn't express much before and
the therapist tells you it is okay to feel the way you feel.
So what's wrong with talking with a warm and sympathetic lis-
tener about your problems? Nothing at all. It's a perfectly sensible
thing to do. This support service is a necessary social function that
used to be provided by our wise old grandmothers, our experienced
Uncle George, or the family minister-people who had seen a great
deal of life and had given it a great deal of careful thought. In today's
highly mobile and less traditionally religious society, it is quite appro-
priate that these services be provided by "professionals"-people
whose job it is to listen, to give warm support, to provide perspective
on problems, to help people feel better.
But what effect is this so-called emotional validation supposed
to have on your life? The therapist, after all, is just a paid, profes-
sional emotion validator. How is his or her validation supposed to
transfer into your real life outside the therapist's office? Your
daughter still hates you and your boss still thinks you're a slacker.
Who cares if your therapist is sympathetic? Not your daughter or
your boss, that's for sure. There's no evidence that warmth from a
therapist changes the patient's life for the better.
Why would it? Huggy therapists have promulgated the utterly
unsubstantiated notion that talking about your feelings, "unbottling
the rage'' or "lemnp: the anger out," will effect real change in a
person's life. The idea seems to be that encouraging adults to throw
tantrums will make them better people. That approach is about as
effective with grown-ups as it is with kids. It springs from nothing
other than the psychocultural belief that restraint and responsibility
are bad, the free expressiveness of the innocent and primitive child is
good. At least wise Uncle George and the family minister insisted on
imposing some sense of perspective when they were being emotionally
supportive. The current psychotherapeutic enshrining of emotional
expression does no such thing, and flies in the face of common sense
about behavior and well-being. Feeling good in the therapist's office is
nice, but what does it have to do with feeling good about the manage-
ment of life's normal checks, opportunities, and challenges? Nothing.
Fmotional ~-alidati~ij d l ~ l ~a i p~ i~~ uJ 3~ J ~ a i i ~~cI I UI ~; ~~; I tIiI.\I
i ~L
ground of wishful thinkin? as insight therapy. Insight d~crapyand
emotional validation cannot work 1)ecause they are not really
WHORES OF T H E COURT
designed around any other goal than simply talking to the patient and
malung up stories with the patient-and, all too often, the thera-
pist-as the star. They are certainly not designed to change the
behavior of the patient that is contributing to his or her unhappiness.
For all that talking can be a pleasant, if expensive, way to pass
the time, what is important is what you do, how you change your life
to make it better, how you change the way you live your life to make
you feel better. Changes in how you feel about your daughter or your
boss come from actually making changes in the way you interact with
those people; they do not come from talking about the daughter or
the boss in the therapist's office.
Behavior Modification
For clinical practitioners to claim that therapy works, they should be
able to show that not only do their patients feel better, they act better
too. They lose weight, drink spring water instead of wine, make more
time to spend with their children, perform small acts of kindness to
please their spouses, double their productivity at work, and begin to
trust the boss and co-workers. Dysfunctional, unhappy-making
behaviors should decrease, and functional, happy-making ones
increase. Do they? No, in general, they don't.
For dysfunctional behaviors to change, both therapist and
patient must focus on changing them. Most therapists never dream of
directly attempting to change dysfunctional behavior, but there are
some therapists, the ugly stepchildren of the therapy world, for
whom behavioral change is the sole goal of therapy. These behavior-
ists, as they call themselves reasonably enough, can be fairly effective,
especially with some behaviors that are highly undesirable to the
patient, for example, phobias. N o one wants to be scared witless by
harmless situations. Patients with phobias are usually highly moti-
vated to get rid of the distressing behavior, and inch by inch they
change the way they act and react in the phobic situation.
Behavior modification essentially involves making a new behavior
more desirable for the client than the old behavior. For instance, you
can train a puppy to hold its bladder until it gets outside, but the
training requires that the master turn bladder evacuation inside the
~ O U S Linto
. making evac-
an unplc~santexperience while simultfineol~cly
uation outside pleasant.
MUSIC T H E R A P Y F O R W I F E K I L L E R S
Plain Foolishness
This testimony and cross-examination, from a 1993 civil trial for past
psychic injury, provides a flawless example of this approach.
Attorney: Can you help me understand some of the terms that you use
in describing some of your therapy work? What are Bio-energetics?
Therapist: Bio-energetics is a form of therapy that deals directly with
breaking down "Body Armor" through doing various physical
activities.
Attorney: And what kind of physical activities do you employ in your
therapy group or individual therapy?
Therapist: It's primarily in Group T h ~ r a p yand Anger Work in
which a person might u i a~tennis racquet to hit pillows. They
WHORES OF T H E C O U R T
REHABBING CRIMINALS
So can psychotherapy work for the average slightly messed-up person
who chooses to enter therapy for help with his or her problems?
Sadly, the answer is usually not. One cannot then help but wonder
just how well it works to "fix" the criminally insane.
All over the country, those judged not guilty of their crimes by
reason of some definition of mental mess-up are sent to hospitals
where they receive therapy for wife beating or disemboweling, child
molesting and other assorted allegedly mentally caused behavior
problems. When they are better, they are released back into the gen-
eral populace.
There is an even larger number-actually, a vast number-of
criminals who are sentenced to some form of psychological treatment
or are forced into rehabilitation thcrapy as a condition i t h e r of
avoiding prosecution or of parole.
W H O R E S O F 'THE C O U R T
Does anyone know how well the various states' efforts to teach
their sex offenders victim empathy, anger management, and relapse
prevention work?
T h e classic study of the effectiveness of sex offender treatment
programs is that conducted by Lisa Furby, Mark Weinrott, and Lyn
Blackshaw, published in 1989 in Psychological Bulletin. T h e authors
collected and reviewed the results of forty-two studies of male sex
offenders who had been convicted of a sex crime under the prevailing
law or who had admitted to a treatment center that they engaged in
criminal sexual behavior. They included only men for whom the
recidivism data was on record in the criminal justice system, and for
whom follow-up data were available.
These forty-two studies covered a wide variety of crimes, and
various lengths of follow-up periods, and any number of "treatment"
techniques, with recidivism rates varying wildly from 4 to 50 percent
for untreated offenders and from about 4 to 60 percent for treated
offenders. What did the authors find when they pooled and combed
all those data?
Nothing. Right. Nothing.
"We can at least say with confidence that there is no evidence
that treatment effectively reduces sex offense recidivism" (Furby,
Blackshaw, and Weinrott 1989, p. 25).
Well, that should have been the end of that, right? That was
back in 1989. It was not the end. Treatment programs proliferated
still more. There is just too much money involved, too many careers,
livelihoods, and reputations to just shut down the whole scam. Sex
offender therapy must be shown to work.
So yet another analysis of their effectiveness was undertaken.
This one was by Gordon Nagayama Hall, and it was published in
1995 in the Journal of Consulting and Clinical Psychology. What did
Professor Hall discover? Looking just at more recent studies, twelve
of them from 1988 to 1994, with a range of participants from 16 in
the smallest study to 299 in the largest, Hall found that 27 percent of
untreated sex offenders committed additional offenses compared with
MUSIC THERAPY FOR WIFE KILLERS
They are quite likely to say, "Oh, yeah, great program. Helped me a
lot." With these measures there cannot be any way of knowing
whether the men actually stop beating the women in their lives any
more than one could tell if sex offenders who have not been arrested
have actually stopped committing criminal sexual acts.
According to Evan Stark in a 1995 article, "Most domestic vio-
lence offenders have a long history of assaultive behavior (against
their partners at a minimum) and are unn-cpentant7'(p. 979). Under-
reporting has got to be the rule unless one believes that every sex
offense and every violent act against a woman results in an arrest.
And no one believes that. N o one believes that any more than 10 per-
cent of such acts ever reach the attention of the police.
When the women victims thenlselves are asked about the results
of treatment programs, the results are quite different from what we
get with men's self-reports and re-arrest statistics. A 1989 study
showed that after a careful test of a twenty-four-week program, 2 3
percent of the men who completed the program were not violent
toward their partners versus 22 percent of the noncompleters. N o
difference. Thirty-six percent of the completers made violent threats
toward their partners versus 30 percent of the noncompleters.
Worse. And 26 percent of the completers were directly violent
(shoved, bit, slapped, etc.) versus 27 percent of the noncompleters.
Ag~in,no difference. L3_;tly,IS pcxent of the men who completed
the program were severely violent (burned, punched unconscious,
threatened with weapon, etc.) in the first six months after program
completion versus 22 percent of men who did not complete the pro-
gram. Great.
In short, there was no effect of the treatment program in the
most carefully run of all the empirical studies. T h e bottom line is that
simple arrest is just as effective as treatment, especially for men who
are employed, and neither may be effective at all unless you keep the
perpetrator locked up. Treatment programs teach batterers to be
more careful about getting arrested again. Period.
As Zvi Eisikovits and Jeffrey Edleson put it in their 1989 review,
"Several major problems appear in research on all levels of interven-
tion. First, most of the studies . . . have been conducted by the very
people who have designed the intervention and thus should be
regarded as self-evaluations at best" (p. 407).
MUSIC THERAPY FOR W I F E KILLERS
PREDICTING DANGEROUSNESS
Michael Kelley, who was treated and released at Bridgewater in Mas-
sachusetts, suffered from both of thesc disablillg ~u~lclitiw~ls. FOXhim
the combination problem was obviously intractable, given the star-
tling speed with which he repeated hi. app.llling crimes as soon as he
was released from the hospital. How could Kelley's ductors halc
failed to know that he was still danrerous? It is their job, is it not?
Thomas Barefoot may not have been a very nice man. There are
certainly a good many people who would argue as well that he
deserved to die. But no one, absolutely no one, should be misled into
believing that the decision about whether a man should live or die
should be based on the "scientific" opinion of mental health profes-
sionals about his future dangerousness. Such testimony is an out-and-
out fraud and should not be allowed in our courts.
WHORES OF 1'HE C O U R T
MATURATIONAL COMPETENCE
How do psychologists tell if a child has the necessary competence to
understand the nature of his or her criminal actions? How do psy-
chologists determine, for example, whether a six-year-old child who
attempted to kill a newborn baby actually understands the concept of
the permanence of death? Do psychologists have any special knowl-
edge unavailable to courts and the public on the mental abilities and
general knowledge of children of different ages? Yes, they do, but not
as much as they say they do.
Intelligence Tests
When forensic psychologists are asked to evaluate the maturational
competence of a child defendant, they often give the child an IQ test.
IQ tests do perform fairly well at predicting academic performance in
school. Since these tests are at bottom general knowledge tests-with
age norms-the psychologist is simply determining whether the
child has more or less general knowledge than other kids of the same
age. And of the same racial background. Different ethnic groups have
different IQ norms for how well children of different ages perform,
on the average, on the tests, so any such evaluation must be inter-
preted relative to the child's own ethnic group.
Does giving the ten- and eleven-year-old children from Chicago
such standardized intelligence tests tell the courts anything about
whether they are capable of appreciating the wrongfulness of their
act?
No. It does not. It showed that both boys perform on the IQ
test at a significantly lower level than their age and race peers, but it
CONSTRUCTION OF T H E PSYCHOLOGICAL CHILD
'73
When Dr. Huffine says some violent acts are so bad that they ruin a
child's life, he is not referring to the dead child here. H e is referring
to the killers.
So what do psychologists do when they are asked to make a
determination of amenability to rehabilitation in the case of a child?
They do the same thing the rest of us would do. They look at the
child's family history and make a prediction informed by demo-
graphics. For example, children of intact families have a statistically
lower prevalence of criminal conduct than do children of single-
parent families, so a child from an intact home gets points toward
higher probability of rehabilitation.
They also look at a child's past conduct as a predictor of prob-
able future conduct, because everyone knows that what one has done
before is the best predictor of what one will do in the future (e.g., he
got good grades for the last six years, so it is likely that he will get
good grades in the next six years). Nothing is a perfect predictor, but
these factoids are how we-all of us, psychologists included-make
our best bets.
Psychologists, like the rest of us, also look at the nature of the
particular crime the child committed, and the more horrific the crime,
the more pessimistic they feel, the more so as the chld's age increases.
This assessment is rather problematic-as are all pretrial evaluations
that weigh the significance of the crime-because the child before ma1
CONSTRUCTION OF THE PSYCHOLOGICAL CHILD
I75
has not yet been convicted of any crime, yet the nature of the crime
and the criminal intent strongly affect the psychological evaluation.
If society feels that such determinations are necessary and useful to its
ends, then laypeople must bite the bullet and make those determina-
tions themselves without the spurious assistance of pseudo-expertise.
In a . . . series of studies, Dr. Ceci and Dr. Bruck and their col-
leagues asked several classrooms of preschoolers to remember
things they really had experienced, such as an accident requiring
a doctor's visit and stitches. They were also told to think of
events that had never happened, like getting a hand caught in a
mousetrap and having the trap removed at the hospital.
Once a week an interviewer asked children individually
about both events. When a child said that an imaginary sce-
nario like the mousetrap accident had happened to her, she
was asked about details, such as what she was wearing when
she went to the hospital and who went with her. . . . [B]y the
seventh week, about half were claiming they'd been hurt by
mousetraps. Not only that, but some of the stories were as
detailed, coherent, and emotional as true recollections.
These experiments show that suggestive questioning about
events that never happened can contaminate young children's
memories with fantasies. In the real world beyond the psy-
chology lab, Doctors [Stephen] Ceci and Maggie Bruck sus-
pect that the same thing happened to children in the day care
scandals.
In [another] one of their experiments several preschoolers
got a routine checkup from a doctor who avoided touching
their genital areas. All the children were then asked to show
how they'd been examined by the doctor, and they were given
dolls with sexual parts to help them explain. In response,
many said they had been touched sexually. Some hit the dolls'
penises, vaginas, and anuses, or stuck spoons into the orifices;
they said the doctor had done the same to them. When chal-
lenged, one continued to vehemently insist that the doctor
had touched her abusively. Playing with the anatomically
detailed doll had apparently altered her memory. (Nathan,
Redbook, April 1996, p. 14)
our children lie to us. Our teachers lie and our students lie, and so do
our patients. We believe them all. Most of us are reluctant to admit
we can be suckered, but we know in our heart of hearts that it is so.
Clinicians believe in their heart of hearts that it is not so, that no one
can sucker the trained psychotherapist. They are wrong.
What do clinicians do when they are confronted by a child's
allegations so bizarre that no clinician-except perhaps the space
invader specialist from Harvard-and no parent who was not also
completely delusional, could possibly believe them to be true? To the
rest of us, patently false allegations would suggest that the child was
not telling the truth, the whole truth, and nothing but it. Not to the
clinician.
God help us. Vachss has a touching faith in the neutral stance
and extraordinary fact-finding skills of forensic psychologists,
although he shows no respect at all for the rights and responsibilities
of parents. H e thinks that growing the professional child protection
industry to a size and power even greater than now will somehow not
CONSTRUCTION OF T H E PSYCHOLOGICAL CHILD I97
only further the cause of justice in America but protect our children
from harm. He could not be more wrong. We have done enough
damage by abdicating our responsibilities as fact finders in these ter-
ribly difficult matters-designating fatally flawed and inadequate
pseudo-specialists to do the job for us. Magnifying the error is sure as
heck not going to erase it.
Miscarriages of justice do matter, both to individuals and to
society.
In our fervor to save the children, we are simply damning our
society from another direction. Unexamined mythology, unwarranted
prejudice, and unanalyzed opinion of clinical psychology are bur-
rowing like termites into the foundations of the justice system of our
country, and they will topple it if left unchecked.
In the Best Interests
of the Child
Parental Rights and Psychoexperts
T h e family court took custody away from the mother, who lived
with her new husband in Tennessee, and gave it to the father, who
lived with his new wife in Wisconsin, the site of the original family
home.
T h e mother appealed, contending that the psychologist's opin-
ions were nothing but responses to hypothetical questions and did
not take into account the actual persons involved. Moreover, she said
that an expert's answers to hypothetical questions provided an insuffi-
cient basis to change custody.
As the court of appeals put it so succinctly, "We disagree."
T h e appeals court ruled that the trial judge was quite right to
give custody to the father since the mother had shirked her duty of
having her parental fitness weighed by a professional psychologist.
They also had no objection to the psychologist offering "hypothet-
ical" opinions about the mother she had never met. After all, they
seemed to say, whose fault was it that they had not met?
I N T H E BEST INTERESTS OF T H E CHILD 20I
T h e appeals court agreed that the lower court could not "abdi-
cate its duty to determine custody by relying solely on the report of a
court-appointed expert," and sent the case back down to get a fuller
explanation of the grounds for the custody decision.
T h a t decision by the appeals court to ask for more informa-
tion might suggest that at least the higher courts are cautious about
the usurpation of judicial power by the psychoexperts, but this pru-
dent weighing of psychological testimony is by no means a uniform
happening.
In Lobo v. Muttee, a 1993 case in New York, the state appeals
court acknowledged that it "would be seriously remiss if we allowed
a custody determination [to grant sole custody to the mother] to
stand without . . . complete forensic evaluations of the parties and
the child. . . . "
202 WHORES OF T H E COURT
bolsters its own criterion du jour and rejects it when it does not.
But the buck does not stop with the initial trial judge. In our legal
system the king must bend the knee to a still higher king-another
judge or set of judges with different criteria-in a chain of authorita-
tive review that in family law cases usually stops at the state appeals
level. Since one of the measures of judicial competence is the number
of times the judge gets reversed on appeal, it is no surprise that judges
do their best to make sure their decisions have a sound and substantial
basis. It is in seeking such a basis that they allow psychoexperts to
overrun their courts with the madness of their pseudo-expertise.
Aware of the large and growing number of psychologists taking
on the role of critical adviser to courts in custody cases, the American
Psychological Association has issued to its members a set of guide-
lines outlining the duties and responsibilities of the ideal custody
evaluator.
Biases about superior values may also arise out of the psycholo-
gist's personal views of motorcycle riding, of hiring a babysitter while
a parent attends school, of drinlung beer while watching television, of
parents' working for twelve hours a day-or of not working outside
the home at all-or what he o r she feels about the importance of tra-
ditional values in terms of roles, morals, sexual behavior, education,
and religion.
It is n o step at all to turn those personal value judgments into
professional opinions to support the case of a parent making claims
along these lines:
Of course, these appeals do not always prevail. This one did not.
But the wife here was a psychiatrist and shot back with two of her
own experts.
When hired psychological experts pretend that their evaluation
of respective parental values is a scientific endeavor rather than a
strictly personal echoing of their own values hierarchy, they will see
every aspect of the custody evaluation through lenses ground by that
delusion. Having decided which parent they most respect or admire,
they then find evidence everywhere to support that bias and distort
every piece of the report to make the preferred parent look better to
the judge.
In a critique on one expert witness's testimony in a change of
custody case, Jay Ziskin, in Coping with Psychiatric and Psychological
Testimony, wrote:
Blind Justice
With regard to the neutrality of the evaluator, the custody guidelines
for the American Psychological Association state, "The psychologist
should be impartial regardless of whether he or she is retained by the
court or by a party to the proceedings."
Well, that is a good thought, but let us think it through a
moment. Let us say that as a practicing clinical psychologist, I wish
to make a significant portion of my income hiring myself out to do
child and family evaluations in disputed custody suits. Let us say fur-
ther that I have the idealism of a first-year graduate student and so I
maintain an absolutely rigid and translucent neutrality as I perform
my evaluations for my first clients. Let us say further that by chance
alone I find the client who hired me to be the superior parent in
exactly half the cases, and in half, alas, he or she is judged by me to
be inferior. Let us say, lastly, that my colleague testifying for the
other sides invariably finds that there is sufficient reason to believe
that the parents who hired him have the superior claim, evidenced,
apparently, by their vastly superior intellect and good judgment in
hiring said colleague.
After half the attorneys who hired me lose their cases because of
my highly judgmental and prejudicial reports and testimony, whom
do you think will be hired for the next disputed custody case? Me?
The loose cannon who can be counted on to shoot his own client in
the foot half the time? Or the other psychologist, who smoothly
makes a compelling and plausible argument that the client who hired
him is the superior parent for any number of reasons related to
208 WHORES OF T HE COURT
sibility of deciding the impossible and buffers the judge from reversal
on appeal. In addition, judges either buy into the validity of the testi-
mony of the experts they so freely appoint, or use them at will to
accomplish their ends. In what must be one of the most quoted of
New York custody cases, Nir v. Nir from 1991, the appellate division
of the state trial court wrote:
Reporting Abuse
T h e court wrote that the mother's "unfounded allegations that the
father had sexually abused the child, and physically abused her, are
further evidence of her unfitness to act as the custodial parent." They
cited Nir v. Nir for this part of their opinion (Landau v. Landau, 1995).
T h e issue of physical and sexual abuse is a legal snakepit for
both accused and accuser and, unbelievably, even for those who make
no such allegations at all. If the mother does make a claim that the
father abused either her or the children, and the court does not find
those allegations to be substantiated, then the allegations per se are
taken as evidence that she is an unfit parent. Accusations of abuse that
cannot be soundly corroborated can function quite easily as prima
facie evidence of mental illness, making the mother an unfit parent by
virtue of her "delusions" and her "unreasonable" bias toward the
father of the children.
In Young v. Young, the appeals court wrote:
Although the father had, during the early stages of the divorce
action, stipulated to the mother having custody of the chil-
dren, he moved . . . for a change of custody to him, with the
mother to be given only supervised visitation, based upon
what he claimed to be the mother's "bizarre and dangerous
behavior" which was "calculated to destroy the children's rela-
tionship with [him]."
We now turn to the underlying basis for [the psychiatrist's]
recommendations for a change of custody; namely, the
mother's constant interference with the father's visitation with
the children. While the mother's interference took on many
forms . . . its most pernicious form was the numerous false
allegations of sexual abuse made by the mother against the
father. . . .
As Dr. Reubins indicated in his report, "She sees only
before her the obligation to protect her children from her fear
with no appreciation that the totality of allegations she has
raised have been unfounded.
"These repeated uncorroborated and unfounded allega-
tions of sexual abuse brought by the mother against the
father cast serious doubt upon her fitness to be the custodial
212 WHORES OF THE COURT
This judge wasn't very enthusiastic about the use of toy bears to
evaluate abuse allegations either. "Ms. [Barbara] Pilcher, [a certified
social worker], who has a psychoanalyacal orientation, gave considerable
weight to symbolism and the child's play with certain dolls, including a
bear with a long nose, which nose she saw as a phallic symbol."
It is heartening that at least some of this foolishness meets with
the occasional judicial rebuff. Sadly, though, even the most skeptical
judge can be snowed by a pseudo-science blizzard. Consider the fol-
lowing from the judge's remarks in the Eli v. Eli case described above:
"Of the three witnesses who gave expert testimony on sexual abuse
issues, Dr. [April] Kuchuk had the most formal education, the most
knowledge of the literature. . . . Her opinions in this case were based
on experimental data in the sexual abuse area, of which she appeared
to have encyclopedic knowledge. . . . [It is] Dr. Kuchuk's opinion that
this child does not present classic signs of sexually abused children
her age. . . . "
Unfortunately for the validity of this expert's opinion, there are
no experimental data supporting the existence of "classic signs" of abuse fir
children of dzfferent ages, or, indeed, fir children in general. That lack
makes such "scientifically" couched opinions a shocking fraud, for
parents, children, and courts alike. According to the authors of a
major review of current research, "No one symptom characterized a
majority of sexually abused children. Some symptoms were specific to
certain ages, and approximately one-third of victims has no symp-
toms7' (Kendall-Tackett, Williams, and Finkelhor 1993, p. 164).
Whatever this expert may have told the court, she could not have
been relying on scientifically reliable data to support her opinion.
We are better off with bear's noses and rag doll penises than we
are with unwarranted assertions of scientific expertise where none
exists. After all, just about anyone-outside of the truly devout
Freudian-will find the phallic nose symbolism laughable, but who
can laugh off claims of scientific proof? Perhaps these experts even
believe their own claims.
as much as fifty hours; some never saw the subjects of their evalua-
tions at all. Typically, the evaluative process last two or three hours.
Then the expert has to write up the reports.
Courts seem to give more weight to the opinions of the evalua-
tors who conducted the more extensive interviews. In one case, Young
v. Young, cited above, the supreme court (the trial court) of New York
weighed the competing evaluations of two psychiatrists so:
SOLOMON'S SWORD
The APA has not taken a stand on whether forensic clinicians should
present their scientifically empty opinions in custody cases to the
court as the substantiated and definitive recommendations of an
expert, saying, "[Tlhe profession has not reached consensus about
whether psychologists ought to make recommendations about the
final custody determination to the courts."
In actual practice, whenever a forensic clinician makes a recom-
mendation about custody to the court, he or she is telling the judge
who is the better parent for the child or who will be the "best match"
for each child's needs.
Not all the practitioners who do custody evaluations are com-
fortable wielding Solomon's sword so boldly, Some are comfortable
making recommendations only if they strongly feel that one parent is
unfit, but not when both parents seem adequate. When confronted
with a situation in which the two parents are equally fit, from a psy-
chological assessment standpoint, to be custodial parents, then some
psychologists state that it is not possible for the psychologist to have a
profissional opinion about which parent should have custody. These
clinicians argue quite rightly that the evaluator's personal opinion
should be irrelevant.
Custody evaluators on both sides of the recommendation issue
would likely claim that it makes no difference whether they choose to
decide between the parents because the court is free to disagree based
on different information or on different weights of information.
Well, that is not so obvious.
I N T H E B E S T I N T E R E S T S O F T H E CHILD
2 I9
Michelle had been taken from her own home, where she had
been neglected and mistreated, and placed in the care of a foster
family. In their care, she died under the sheetrock. T h e foster family
I N T H E BEST INTERESTS OF T H E CHILD 221
said the child's death was accidental. T h e coroner said he could not
determine the cause of death because the wounds on her body were
so many and so varied. Whatever the cause-whoever the cause-a
little girl is dead because neither her family nor her guardians were
capable of taking the necessary actions to keep her alive. Her foster
parents, the Johnsons, were never charged in this case. Neither was
anyone else.
O n November 27, 1995, in New York City, another little girl,
Elisa Izquierdo, six years old, was found beaten to death by her
mother. Everyone-teachers and neighbors-had noticed the child
was limping and bruised and, eventually, no longer attending school.
Five times child protective services personnel had been called in to
help this child, to save her from what was indisputable abuse. Three
times the department returned the child to her mother, deciding that
it was in the best interests of the child to keep her in her home with
the mother who was step by step killing her until at last she lay dead
at the feet of the clinical social workers who had held her very life in
their hands.
T h e fates of these two innocents are not that unusual. Some
three hundred children each year in our country are killed by their
parents or foster parents. Countless more are beaten, starved,
exploited, and drugged in scenarios so ugly they could come, seem-
ingly, only from the pen of the most sadistic of sensationalist writers.
T H E ROAD T O HELL
In 1995, a veteran testified at a Senate subcommittee hearing on child
protection:
from a child who has not been abused. They found that no particular
symptom or cluster of symptoms or syndrome differentiated abused
from unabused children, and that about one third of the abused chil-
dren showed no symptoms at all (Kendall-Tackett, Williams, and
Finkelhor, 1993).
These studies make it very difficult for any expert-whatever
the impressive list of credentials-to claim that he or she can infal-
libly detect either an abuser or a victim of abuse.
Then what are these so-called professionals doing in court
expressing their utterly unfounded opinions one way or the other
about these matters? They have no knowledge, but they do have the
power.
T h e law was written to place the power in the professional's
hands; the entire legal system set up to deal with abuse of children is
predicated on there being child professionals-psychologists of one
type or another-on whom the rest of us can rely to determine the
best interests of the child. Someone has to fill the bill and there are
about 100,000 diplomas out there claiming that right to do so.
These people are supposedly trained, and they are certainly well
paid, to tell the rest of us what is wrong with a particular child, if any-
thing, who did it, and what should be done for the child. We want
them to make these judgments. We beg them. T h e law demands it of
them. Of course we get what we ask for.
Carol Lamb Hopkins was the deputy foreman of the San Diego
County grand jury that reviewed the country's juvenile dependency
system in 1995. She was also a member of the San Diego district
attorney's ad hoc Committee on Child Abuse. In her testimony to the
Senate subcommittee's hearings on children and families on May 25,
1995. she said:
Abuse of Immunity
Both willful blindness and fairy tales have served as the basis for
breaking up families, removing children from their homes, and
placing them in foster homes where they are quite likely to be
abused; and they have resulted in numerous criminal charges being
brought against adults targeted by the tales.
Why aren't those professional validators a little worried about
making allegations so bizarre that it would seem that no one in his or
her right mind could possibly take them literally? If they are not wor-
ried about harming others, shouldn't they be a little worried about
getting sued for irresponsibility? Well, no.
In an unsurprising extension of the immunity granted to those
who report suspected child abuse, the courts have ruled that immu-
nity also shields the activities of the authorities-the child care pro-
fessionals-who are called in to investigate those reports. It is this
extension of immunity that allows doctors and nurses, social workers
and psychologists who induce children to make bizarre allegations to
do so without any fear of retribution.
One might think that at least in cases in which the defendants
were found not guilty that someone, somehow, would be held
responsible for dragging both the helpless children and the innocent
accused into court, but it is not so, not even when the allegations are
of so extreme and nonsensical a character that if uttered by any but
the certified child care professionals, they would land the utterers in a
safe environment for evaluation themselves.
T h e abuse evaluator is immune as well from the charge of
having irresponsibly violated all sense of ethics, decency, and even
common sense.
When the McMartins of the famous day care abuse case were
finally vindicated, they sued Kee MacFarlane, the child psychological
specialist who interviewed the children, as well as the corporate entity
for which she worked. T h e California court ruled that they could not
sue Ms. MacFarlane-or Children's Institute International-for her
role in the raising of bizarre allegations like hot air balloon molesta-
tion and tunneling trips to graveyards to dig up graves and hack up
corpses because she was just doing her job under the shield of immu-
nity. Immunity applied because her investigations arose directly out
of the initial reports of abuse (McMartin v. ChiZd~en5- Institute Interna-
tional, Calzfomia, 1989).
Extraordinary. If the initial cause is just, then any evil in its ser-
vice is justified?
In the case of Wade, the naval officer above, the situation
turned out a bit better in the end. In part this was because a very
interesting series of events had been taking place during the family's
ordeal but unknown to the Wades. It happened that a convicted sex
offender was being tried for abducting and molesting children in the
very neighborhood where the Wades lived with their daughter who
was raped. T h e so-called therapist and abuse specialist never told
these poor parents, although both professionals were aware of it all
along.
When the facts came out, the Wade family sued their daughter's
"therapist," Kathleen Goodfriend. T h e California Court of Appeal
I N T H E BEST INTERESTS OF THE CHILD
233
found that for the family therapist Kathleen Goodfriend, her suppos-
edly "therapeutic" activities extending over a two-and-a-half-year
period after the initial report of the abuse "had nothing to do with
the child abuse identified and reported at the outset by the hospital.
[The] alleged coercion of Alicia continued over the next two and one-
half years-long after any 'emergency' had passed, after Alicia was
out of harm's way, and after the authorities were actively involved,
investigating and prosecuting.
"To hold such conduct protected is to immunize virtually
anyone coming in contact with an abused child. We do not believe
such an interpretation is warranted by the reporting statute" vames
W et al. v. Superior Court of San Diego Co., Kathleen Goodfiiend et al.,
1993).
Following this decision, the Wade lawsuit was settled, for a total
of $3.7 million. T h e county paid about $750,000 for its share of the
damages.
In most cases the injured family is without recourse. "I was just
doing my job." Doing it badly doesn't seem to have a negative impact
on the pocketbook either. Kee MacFarlane, despite the over-
whelming rejection of the bizarre allegations of nursery school chil-
dren undertalung grave robbing and corpse mutilation that appeared
over the course of her interviews with the children, still works as a
clinical child psychologist and commands hefty fees as a speaker on
her experiences.
None of this should come as a surprise to anyone. Abuse of
immunity is inevitable. Where there is no accountability, there is no
responsibility. It is as simple as that.
I T IS A TOUGH JOB
T h e abuses and excesses of so many child welfare specialists should
not be allowed to obscure the indisputable fact that there are many
decent, caring, hardworking professionals who do their absolute best
with huge caseloads to help the children as well as they can be helped
with the psychological tools available. It would be cruel and
ungrateful and stupid to say otherwise.
T h e problem for them and for us is that the psychological tools
just do not exist for them to do their jobs, and no one can or is
willing to admit that. It is just too difficult to deal with the awful
234 WHORES OF THE COURT
reality that in the three million annual cases of alleged abuse, our
already overworked police forces would be called on to investigate
and make determinations essentially without any evidence at all of
where, with whom, and by whom abuse has occurred. Who can
blame the police and the prosecutors' offices-along with our
courts-for wanting the assistance of professionals who know what
they are doing?
It is just too bad that there are none available.
Both in custody cases involving allegations of grave risk to chil-
dren in the home, and in cases arising where parents cannot agree on
custody for reasons both profoundly serious and dismayingly foolish,
our judges-our whole family legal system-desperately seeks guid-
ance about where to find and where to place the best interests of the
children involved. Agencies, parents, and judges alike turn to psy-
chological professionals to help them find the truth or make their
case.
Our common desperation seems to have produced the common
delusion that experts actually exist who really can determine with the
unerring instinct of a homing pigeon exactly where the best interests
of a child lie, where a child should live, whether and how a child has
been hurt, how a child should be protected, who will be the superior
parent, and who is unfit to be a parent at all, who should have the
right and the duty to care for a child, who should see the child only
under restricted conditions, and who should be kept away from the
child altogether.
Acceptance of their expertise has led us to trust professionals to
make these decisions for the family court system. That means ulti-
mately that we also grant them the power to make these decisions for
our own families. The abstract need of society to protect its children
becomes inevitably the rape of the rights of the real parents of indi-
vidual children. Once again, the institutionalization of society's desire
to "do good" results in terrible harm for those in the path of the do-
gooders.
The marriage of law and psychology has reached the heights of
disproportionate power for the psychologists not just in family courts
but in all legal disputes in which a psychological matter is at issue.
Judges buy the validity of the expertise of the confident psychological
practitioner and no doubt welcome the opportunity to make their
IN T H E BEST INTERESTS OF T H E CHILD
235
tacts with her cousin over the years, with frequent loans from George
to Ann. In 1991, during a course of psychotherapy when, coinciden-
tally, her cousin refused to lend her an additional $30,000, Ann said
she regained her memories of the numerous incidents of fondling of
fifty years ago; she subsequently sued her cousin for damages.
Her cousin, George, objected to Ann's suit, arguing that the
touching was consensual and, moreover, that suing fifty years after
the alleged tort vastly exceeded the statue of limitations for a personal
injury suit. Further, George claimed that Ann's failure to bring suit
earlier could not possibly be due to traumatic repression with
memory loss because no such thing existed in science.
U.S. District Judge Edward Harrington, of the First Circuit,
heard George's objection and issued a ruling in May 1996, declaring
that, at least for the First Circuit, repression of memory due to
trauma-along with its long-delayed recovery years after the trau-
matic events-had been firmly established in science. Thus, Ann's
civil suit could go forward, fifty years old or not.
In reaching his decision, Judge Harrington relied strongly on the
testimony of Dr. Bessel van der Kolk, the psychiatrist from Harvard
University Medical School whose work on trauma and memory was
briefly described earlier. Dr. van der Kolk told the judge that repression
was a scientific fact. Judge Harrington wrote that an expert witness
claiming that a theory is scientific "must testify as to whether that
theory can be, or has been, tested or corroborated, and, if so, by whom
and under what circumstances, whether this theory has been proven out
. . . whether the theory of repressed memory is widely accepted in the
field of psychology. Dr. van der Kolk's testimony satisfies these funda-
mental factors" (Shahzade v. Gregory, 1996).
In an interesting application of modern technology, when the judge
made his ruling accepting that the psychological evidence was truly sci-
entific, the Harvard ~ s ~ c h i a t r iand
s t trauma specialist had the ruling
broadcast all over the Internet. The broadcast was no doubt in the inter-
ests of science rather than for the purpose of personal advertising.
Yesterday, the expert witness, Dr. Bessel van der Kolk, testi-
fied that the phenomenon of repressed memories among
238 WHORES OF T H E COURT
In support of his assertions, Dr. van der Kolk told the judge that
he relied on a study by Judith Herman, who teaches in the Depart-
ment of Psychiatry at the Harvard Medical School, and Emily
Schatzow, who is Dr. Herman's colleague at the Women's Mental
Health Collective in Massachusetts, on incest victims who were said
to "recover" their lost memories through group therapy.
Dr. van der Kolk swore to the judge that with this study Dr.
Herman and Dr. Schatzow have provided the world with unshakable
proof that traumatic repression of the memories of childhood sexual
abuse is common. T h e judge believed him.
As Judge Harrington explains:
One such study, which Dr. van der Kolk referred to as the
Herman and Schatzow study, looked at victims of sexual
abuse and found that only approximately one-third of the
victims remembered all the details of the abuse. Another
one-third of the victims had a partial memory of the abuse,
while the final one-third of the victims remembered nothing
relating to the abuse. Dr. van der Kolk stated that these fig-
ures represent "the sort of figures that every study comes in
with, regardless of what the methodology is. . . . " (Sbabzade
v. Gregory, 1996)
This she did, first in a whisper, and then in a loud voice. Her
anxiety then subsided to bearable levels.
In the three weeks following this session, Doris was
flooded with memories which included being raped by her
father and being forced to service a group of her father's
friends while he watched. The sexual abuse began at about the
age of six and continued until the age of twelve, when she was
impregnated by her father and taken to an underground abor-
tionist. (Herman and Schatzow 1987, p. 9)
cannot jump to the conclusion that the neighbor boy took the money
from your wallet without first ruling out all other possibilities. That is
not just good science; it is simple common sense.
How could Dr. van der Kolk tell Judge Harrington that this
hopelessly confounded example of junk science constituted scientific
proof for repression of memories of trauma? It seems impossible that
anyone could do so.
Maybe judges should be required to read the psychoexpert's
source material themselves instead of relying on some expert to sum-
marize it for them. A lot gets lost in the translation.
Trauma in the ER
Dr. van der Kolk also told the judge that repression was scientifically
proved in a study by the sociologist Linda Williams on women's
reporting memories for child abuse incidents that occurred seventeen
years earlier.
As Judge Harrington explains:
Note that Dr. van der Kolk told the judge that the Williams
study was the best ever done on the repression of traumatic memory.
Let us look at the best study ever done.
In a 1992 issue of The Advisor, a newsletter for an organization
of professional child abuse experts, Linda Williams, a member of the
organization's board, reported the results of interviews she and col-
leagues conducted with women seventeen years after they had been
brought as young children to the emergency room of a city hospital
for suspected sexual abuse.
Williams claimed that, "38% of the women were amnestic [sic]
for the abuse or chose not to report the abuse to our interviewers 17
years later." Leaping to generalize her findings, she concludes,
"These preliminary findings suggest that amnesia for sexual abuse in
a community sample is not an uncommon event."
Amnesia? For unfathomable reasons, psychological amnesia is
almost as popular with clinicians who specialize in sex abuse as it is
with Hollywood writers. Williams is saying exactly what Herman and
Schatzow said-that the trauma of the abuse was so great that the
children probably repressed their memories of it.
Did Linda Williams really find that over a third of women who
were abused as children had "amnesia" for the abuse seventeen years
later? No, she didn't. She discovered that 38 percent either did not
remember the incident o r did not choose to tell her researchers about
it. Dr. Williams never even asked the women directly whether they
remembered the abuse. She did not hand them the hospital report
and say, "See this? Now remember?" She has no idea what would
have happened had she done so.
Is this proof of amnesia-proof that the trauma of childhood
abuse forced those memories out of the reach of consciousness? As
above, it is no such thing.
Williams's study, like that of Herman and Schatzow, is proof of
nothing. Williams can argue that she has scientific proof of repres-
sion if and only if there is no other explanation for what happened
with these women.
Are there no other possible reasons than amnesia to explain why
38 percent of the interviewed women failed to report an incident of
child abuse from seventeen years before? Sure there are.
Her youngest subject was ten months old at the time of the
REMEMBRANCE OF T H I N G S PAST 243
reported abuse. Ten months old! Just how much does anyone
remember about being ten months old? O r one year? Or two? O r
even three or four?
Also, for many of the children, the reported abuse consisted only
of "touching and fondling." What's a child supposed to think about
inappropriate touching and fondling? It is likely that such actions were
uninterpretable and nontraumatic for the younger children.
It's important to consider too that there was no physical trauma
in 34 percent of the cases, and in 38 percent no physical force was
reported. For molestation that leaves no physical evidence, with
young children one often has only the word of the mother or other
caretaker that the abuse actually occurred. Maybe nothing happened.
Maybe the mother was overly conscientious. Maybe she was angry at
someone. W h o knows?
In addition, the women in this study were from inner-city fami-
lies who used the hospital emergency room as their primary health
care provider, so there is nothing that would make a visit to the ER
stand out for these children. Did Williams test to see how many of
the other visits to the ER in the course of their childhood these
women remembered? Did she find out what percentage of visits they
forgot? And what kind of incidents they forgot? She did not. She
didn't test how well or how much nonmolested adults remember
about their trips for medical care as children either. She has no idea
what kinds of injuries or sicknesses get forgotten over seventeen
years.
There is nothing at all remarkable about the failure of 38 per-
cent of Williams's subjects to relate an incident of reported sex abuse
from seventeen years prior to the interviews. It would be completely
unbelievable if 100 percent of them had remembered the incidents.
When something does not happen in a study, when women do
not describe to interviewers a particular incident of reported abuse,
the researcher cannot conclude that there is only one possible
reason-amnesia!-for the absent finding. There are any number of
possible reasons a particular finding does not show up in a particular
study.
This study, along with that of Herman and Schatzow, belongs in
the dustbin of junk science, not in supposedly authoritative legal
briefs handed to our legislators and judges.
244 WHORES OF THE COURT
repression. He was right about that. It is the best there is, and the
best is really, really bad.
Most bewildering in the shabby display of pseudo-evidence for
the existence of repression paraded before the judge in Shahzade v.
Gregoq is the research conducted by the number one expert-for-the-
plaintiff himself, Dr. Bessel van der Kolk. Dr. van der Kolk testified
that he conducts research on trauma using what he thinks of as
advanced, sophisticated, neuropsychological techniques.
Dr. van der Kolk asserts that we have a special video trauma
memory that works according to different rules than ordinary memory.
He claims that while ordinary memories of such events as, for example,
your first day at college, will indeed be distorted, decomposed, selec-
tively highlighted, and badly contaminated both by what transpired
before and what occurred afterward, memories of traumatic events are
etched indelibly and unalterably into the very synapses of the brain.
Is there any evidence that special video trauma memory is a
fact? No. But Dr. van der Kolk claims to find that when patients are
asked to remember horrifying events in their lives like the death of a
child in a car accident, their P E T scans look different than they do
when the patients are asked to think about getting up, brushing their
teeth, and going to work. A P E T scan is a picture representing the
amount of brain activity in different colors. Dr. van der Kolk hooks
up volunteers to the P E T scanner-the machine that measures brain
activity and makes the picture-and asks them to remember some-
thing terrible. He takes a "picture." Then he asks them to think about
brushing their teeth. He takes another picture. T h e pictures look
different.
What can one conclude from that? Nothing.
How do the P E T scans look when the patients think about an
event that was unpleasant but not horrific, like having your car
stolen? Who knows? How about a highly emotional event like a wed-
ding day or an episode of adultery? Do they look more like traumas
or teeth brushing? Nobody knows. What do the scans look like when
the patients are asked to fantasize a horrifying event instead of
remember one? Nobody knows.
It wouldn't make any difference if we did have answers to all
these questions. Whether PET scans vary when subjects think or fan-
tasize about various types of events cannot prove that anyone has a
246 WHORES OF THE COURT
trauma engram etched in his or her brain. How could it? And there is
no logical connection between distinctive P E T scans and Dr. van der
Kolk's favorite pseudo-phenomenon, flashbacks. There is no necessary
connection between distinctive PET scans and indelible memories.
For example, let us say that my P E T scans always look different
when I fantasize than they do when I remember real events. Would
that necessarily mean that my memories of real events were exact and
accurate? Of course not. There are innumerable reasons why the two
classes of scans might differ.
Researchers who jump on "the special indelible character of
trauma memory" bandwagon as the only possible explanation are
simply bamboozling the public. This bamboozling is especially intim-
idating when it is sprinkled with a hefty dose of neuropsychology
jargon. What is the poor layperson supposed to say? "1 don't buy that
PET scan stufl" Of course not. W h o would be so bold? That's why
we have experts to explain these matters to the lay public. Neverthe-
less, fancy terms and expensive technology aside, no one ever has
shown that memories of trauma have special etched-in-the-brain
characteristics. Dr. van der Kolk's research certainly shows no such
thing and he had no business telling the judge that it did.
Dr. van der Kolk was testifying about this research to prove that
repression of memory due to trauma is a scientific fact. H e seems to
have forgotten for the purposes of his research the paradox that if his
subjects are able to focus their minds on the memory of a "traumatic"
event, then, by definition, that event was not repressed out of
memory due to the trauma or they couldn't have been thinking of it
during the experiment.
Of course, even if Dr. van der Kolk had avoided this crippling
difficulty, his P E T scan experiments cannot be said to have even the
vestiges of control.
and not because I was hit on the head, but only because my mind is
trying to protect me from the pain of the awful memory."
People like this story. It has an inherent plausibility-at least to
the ear of psychologized Americans. It makes sense. Well, not to me.
Psychologically, I'm from Missouri. Show me. Where's the sound, sci-
entific-carefully controlled and unconfounded by floating variables
and researcher bias-proof that repression exists? There is none.
David Holmes, in a recent comprehensive review of all of the
evidence on repression, found that:
Dr. Terr packed a lot into that piece of testimony. She was
saying that having a horrible experience is different from having an
experience that is not horrible. That is undeniably true on some level
248 WHORES OF T H E COURT
if not all levels. She is saying also that adults are different from chil-
dren. Also manifestly true in many but not in all respects.
Most important, she is saying that her interpretations and intuitions,
and those of other clinicians, are a far better source of reliable and valid
information about memory and trauma than are scientific studies of
memory that do not involve actual trauma.
Now, that is a self-aggrandizing claim with no substantive scien-
tific support whatsoever. That clinicians think they are great judges of
how the mind works does not make them great judges of how the
mind works. It just makes them clinicians.
In an outpouring of pride in the infallibility of her clinical intu-
ition, Dr. Terr writes, "Psychological experiments on university students
do not duplicate in any way the clinician's observation" (1994, p. 51).
That is actually a strange and rather pathetic statement. A rea-
sonable person might expect that at least some of the clinician's
observations ought to be scientifically verifiable. If a clinician's obser-
vations cannot be duplicated in any way by scientific psychological
experiments-whatever the age or educational status of the sub-
jects-then something is seriously wrong with the clinician's observa-
tions. It is hard to imagine why anyone in the medical professions
would take such obvious pride in being beyond the touch of science.
Despite the disdain frequently expressed by clinicians for the
inferior research efforts of their lesser scientific counterparts, we nev-
ertheless have clinicians and trauma specialists like Williams,
Herman, Schatzow, and van der Kolk all claiming that their scientific
efforts to prove the existence of traumatic, "amnestic" repression
have been wildly successful and downright definitive.
They should be joking, but they are not. Their work should be
assigned in classes on research design to illustrate "What is wrong
with this study?" It certainly should not be presented in court as sci-
ence to a judge trying to make an honest and informed decision about
the scientific status of some psychological concept.
It is especially frightening to realize that the professional organi-
zations on which both the courts and the public rely are utterly
unwilling to rein in these pseudo-experts when they testify. In fact, in
Shahzade v. Gregoy, the plaintiff even offered as supporting evidence a
statement of the American Psychiatric Association that said, "Children
and adolescents who have been abused cope with trauma by using a
REMEMBRANCE OF THINGS PAST
249
was not the central issue, since there is no statute of limitations for
murder in California.
Nevertheless, expert testimony on the status of repressed
memory in the Franklin trial triggered an explosion of psycho-
pseudo-science in the witness box and opened the floodgates to a new
kind of civil case for hurts from decades past, and a new kind of
delayed discovery law. In 1993 the California Court of Appeal ruled
that Lenore Terr's testimony on trauma and repression was a useful
thing to have had in the courtroom "to disabuse the jury of the iden-
tified misconception that a child witness to murder would not be able
to forget the event only to recall it accurately twenty years later."
This opinion lays out clear acceptance of the psychoexpert's
claim that as far as memory, forgetting, and the effects of terrible
experiences go, the ordinary citizen is an ignorant boob. This court
accepted the psychoexpert's claim that laypersons suffer from "mis-
conceptions" about these matters and require "disabusing" through
the good offices of the knowledgeable psychological professional who
can infallibly ferret out the deepest buried secrets and the most elu-
sive and complex mental processes.
Given what seems to therapists and patients to be the over-
whelming intuitive evidence that traumatic repression exists and
operates in just the way they have observed with their patients, many
clinical practitioners supported a change in the statute of limitations
for prosecuting past crimes and for bringing civil suits based on past
injuries.
T h e move to extend the tolling of the statute of limitations
indefinitely puts a great many people in a very dangerous situation.
T h e legal system is supposed to protect the right of the defendant to
mount a reasonable defense. That means if YOU are accused of a crime
or accused of injuring someone, you must have the right to be tried in
a time frame in which it is possible to obtain evidence and witnesses.
You also have the right to expect that the evidence brought for-
ward will be something other than the highly dubious and utterly
unscientific claims of personally invested "experts" in psychological
"phenomena" that have absolutely no scientific basis in fact. You have
this right as a defendant, and the people-judge, jury, and society as a
whole-have a right to expect that defendants and plaintiffs will be
found guilty or innocent or injured or competent or whatever on
254 WHORES OF THE COURT
nosis of post traumatic stress disorder that served as the basis of the
alleged damage in the lawsuit for vast compensation-$3.4 million.
Attorney: What were the factors that you saw in your clinical experi-
ence in working with [the plaintiff] that led you to come to diag-
nosing her eventually as having Post-Traumatic Stress Disorder?
Therapist: Okay. T h e fact that what had appeared to be anxiety and
depression, some Dissociation, that I initially saw as Adjustment,
was more chronic. Secondly, that there had emerged in her
therapy clear memories of very traumatic abuse and coercion of
her, which is consistent with PTSD diagnosis. Thirdly, there
was a disruption to her self image, her esteem of that image.
And disruptions in her personal relationships, historically, and
currently at that time.
So, for those reasons, among others, it seemed an obvious
diagnosis to make. (Mutteu v. Hagen, 1993)
Corroboration
Only another expert can testify that your expert is wrong, and what
can he or she say? That you are not sick? You cannot prove that a
person is not sick; you cannot prove the nonexistence of something.
Maybe the second expert is just not as sensitive as the first. W h o can
say? A third expert? There are no objective criteria for most mental
diagnoses.
T h e psychiatric association did not develop its diagnostic cate-
gories or the associated symptom lists through any procedure
remotely resembling standard scientific practice, and individual prac-
titioners do not arrive at their specific diagnoses for particular
patients through any scientific procedure either.
T h e actual basis for the clinician's diagnosis is what it always
was, from Freud to the present, diagnostic manual or no manual:
what the patient says about what he or she feels, thinks, and does;
and the clinician's interpretation of what the patient says.
James McDonald and Francine Kulick have edited a book called
Mental and Emotional Injuries in Employment Litigation-a handbook
for expert psychological witnesses to use in preparing cases for psy-
chological damage. This handy guide to prospering in court points
out, with no sense of irony whatsoever, that:
Mr. Belli was badly led astray there, and so, all too often, are the
rest of us. T h e gullible public is led to believe that clinicians testifying
in civil cases truly reach their diagnostic conclusions after carefully
gathering corroborating information for what the patient tells them,
but, of course, in most instances, corroboration would be impossible.
Who can corroborate whether someone sleeps well, has nightmares,
feels anxious, or can't remember something?
In some cases, however, clinicians simply spurn the concept of
corroboration as irrelevant to the process of healing. They also spurn
reality testing as irrelevant to the process of criminal and civil trials,
which is truly bewildering.
Dr. Lenore Terr, the star witness for the prosecution in the
George Franklin murder trial, displays the classic breezy attitude
toward corroborating evidence for a patient's claim. (Her entire
acquaintance with Eileen Franklin before her father's trial extended
for the whole of four hours.)
Faking It
In the Sbabzade v. Gregory trial, Bessel van der Kolk told the judge
that "there is no scientific basis to believe that Shahzade or other vic-
tims could fake such memories and fool psychiatric tests" (Rakowsky,
Boston Globe, April 10, 1996).
What on earth can Dr. van der Kolk have meant by that?
Did he mean that patients can't fool doctors about whether
claimed memories are real? Not true. Patients themselves can even be
fooled.
Jean Piaget, the famous Swiss child psychologist, gives us an oft-
quoted example of exactly this phenomenon. H e relates that a vivid
childhood memory of his was of an attempted kidnapping he suffered
as a small child in the care of a nanny who saved him from the
danger. Years afterward, in a fit of remorse, the nanny confessed to
Piaget's parents that she had made up the whole story to cover some
indiscretion of hers. Yet, for the young "kidnap" victim, the memory
was as clear and as detailed as any memory of an actual event. Of
course, the stow was probably vividly related by t5e maid, and no
doubt recounted a number of times by family members, so it was a
REMEMBRANCE OF THINGS PAST
263
clear story in young Piaget's mind. How was he to know it was not
true?
N o one can tell the difference between a true memory and a mis-
taken one. There are no reliable differences in accuracy, in the number
of details, or even in the confidence a person feels in the memory.
(For very readable books that deal directly with this issue as it
applies to real-life situations, the reader is directed to any of several
recent offerings by Elizabeth Loftus and her colleagues.)
Did Dr. van der Kolk mean that a patient couldn't fool a test for
traumatic repression? Not true. There are no psychological tests for
such things. What test could there possibly be? Unless someone pops
up and says, "Wait a minute! She told me all about it in 1972," there
is no possible way to gainsay the claim of a traumatic inability to
remember. What secret psychological tests could Dr. van der Kolk
have had in mind?
Is he claiming that no healthy person could fake responses to
psychological tests well enough to fool a clinician into thinking he or
she was sick? Not true. P. Lees-Haley and R. S. Dunn in 1994 found
that college freshmen in the first quarter of an introductory psy-
chology course were quite capable of picking out the appropriate
symptoms for different diagnoses. Ninety-seven percent of these
untrained youngsters picked out the "right" symptoms for depres-
sion, 97 percent for generalized anxiety disorder, and 86 percent for
PTSD (Lees-Haley and Dunn 1994, pp. 252-56).
Moreover, a famous study by David Faust, Kathleen Hart, and
Thomas Guilmette showed that the situation was just as bad even for
the accurate detection of brain damage in children.
times the plaintiff and the plaintiff's attorney will split these costs. In all
cases, these matters are subject to negotiation.
If the plaintiff loses, then he or she must usually pay only court
costs, which essentially amount to fees for photocopying documents
and such.
This is nothing compared with what it will cost the defendant to
fight the suit.
Yes, these suits for compensation for past injury do have defen-
dants. After all, somebody has to foot the bill for your injury, and why
should it be you?
This is my favorite:
What does that mean? Low average IQ means that this guy was
not a rocket scientist, as they say. It certainly does not mean that he
was incapable of working. If it did, half the current labor force would
be on the dole. A passive-dependent personality disorder means that
the patient lies around doing nothing-a condition that could no
doubt be pretty easily induced by the absence of work in the claimant's
life for so long (Dalton v. Semetav of Health and Human Services, 1990).
after claiming that he was disabled by stress when his boss berated
him (Sciacca, Boston Herald, May 2, 1996).
These may be work-related reactions, but they are not mental
illnesses.
One of the most controversial of the worker's compensation
cases was that of a sixty-three-year-old white female employee who
was mugged by a black male while malung a work delivery in another
part of town. Thrown to the ground, she broke a vertebra and was
left in a state of shock.
She has nightmares in which she relives the attack, and being
near black males causes her to experience panic attacks. The
attacks bring on sweating, panic and a rapid heartbeat. She is
undergoing psychiatric treatment and has been diagnosed as
having post-traumatic stress disorder and simple phobia. . . .
Allegedly, her phobia prevented her from worhng without a
guarantee that she would not come in contact with black
males. Florida awarded her workers' compensation benefits
for a work-related disability, and the award was affirmed per
curiam by the Florida Court of Appeals. (Casey 1994, p. 381)
hold a job, but with exculpatory diagnoses accounting for any and all
hnds of lousy job performance. "It is not his fault, Your Honor; he
was too manic to treat his co-workers politely; she was too phobic to
make her sales calls; she was too stressed to come in on time; he was
suffering from Tourette's when he cussed out the IRS."
What any rational person would regard as simply flat-out unac-
ceptable behavior on the job or even on the school campus has
become a "medical mental disorder" thanks to the psychological
establishment's vast lobbying efforts to persuade the general public of
the equivalence of physical and mental "dysfunctions."
Just as criminals are not responsible for their criminal behavior
if they can persuade a forensic clinician-or hire one-to say that
they suffer from a condition that somehow diminishes their capacity
to bear the responsibility for their actions, so too are the "mentally
disabled" relieved by the label of their disability of having to conform
to the demands of civilized society on the job.
This perversion of common sense in the name of mental diag-
nosis does a great and tragic harm to those who are truly mentally
handicapped-like the severely retarded-but who are quite capable
of performing their jobs well with some accommodation to their dis-
ability. Like all scams, it creates an outrage in its victims that all too
often spills over onto innocent bystanders. T h e abuse of mental diag-
noses and the proliferation of absurd demands on employers made in
the name of wiping out discrimination against the mentally disabled
will make cynics and skeptics not only of the business establishment
but of all of us who read of such absurdities in the news.
According to a July 16, 1995, report in the San Diego Union-
Tribune by Brian Doherty of Reason magazine, the Coca-Cola Com-
pany was found liable for over $7 million in front and back pay and
compensatory and punitive damages for firing a man who was under
treatment for alcoholism-a DSM mental disorder. T h e $6 million
in punitive damages granted by the jury far exceeded the legal limit of
$300,000, but under the law juries cannot be informed of this limit.
T h e town of Mallard, Iowa, banned ~ a r fires
d because a resident
claimed that she was hypersensitive to smoke. She claimed that
without the ban she would be segregated from the rest of the com-
munity because of her disability.
Reasonable accommodation has developed into politically correct
theater of the absurd. We see today decisions based on mental "med-
ical" disabilities that truly defy all reason. Once you have the label of
the legally disabled affixed to your forehead, you receive not only a
number of benefits from the different offices of government but a
number of special protections. Behavior that would never be tolerated
in a "normal" person is protected behavior for the disabled individual.
This last fact is regarded by the Globe as the bad news. Before
the end of 1996, over half of the previously substance impaired had
requalified on other grounds. Advocates for the mentally ill were
actively seeking out the remainder to help them requalify as well.
We have let clinicians tell us that they and they alone are
capable of assessing the mental functioning of an individual-based
on their keen analytic abilities and finely honed intuitions-so it is
quite reasonable that they should also be in the position of telling the
rest of society who needs special consideration due to disorders in
that mental functioning.
To make matters worse, the clinicians' determinations of occu-
pational incompetence generally are not challenged. Jerry Dalton's
luck ran out in court but he really pushed it by shifting grounds for
disability claims repeatedly over the years. Disability specialists rarely
go to court. Why should they? W h o can dispute their assessments?
Only another state-certified, qualified psychoexpert. They do their
work out of bureaucratic offices. Signing papers, filling out forms,
substantiating claims with the stroke of a pen, diagnosing disabilities
for money for welfare clients, insurance claims, workers' compensa-
tion cases, and discrimination suits.
absolved the bearer of the disability label of all responsibility for the
bad behavior.
In our society, mental disability is dispensation. In attempting to
level the playing field we've reconstructed the whole surface over a
bed of quicksand. T h e psychologizing of American life in part through
the wholesale proliferation and consequent ubiquitous diagnosing of
mental "medical" disabilities has played a very large role in this.
Recently, a woman in a Washington State discrimination case
was awarded $900,000 after she was fired from a job she had held for
less than a year. Her employer, a radio station, claimed that she was
aggressive and abrasive and insisted on dominating sales meetings.
She claimed that her disruptive behavior resulted from a manic-
depressive disorder about which she had informed her employer two
months before she was fired. T h e court ruled that her firing consti-
tuted unlawful discrimination against a mentally disabled person
(Houston, Seattle Post Intelligencer, August 22, 1995).
One of my favorite discrimination cases involves a Boston
woman, about to be fired from her job for incompetence and
repeated absences from work, who claimed that the stress of going to
work had itself made it impossible for her to do her job. Through her
mental health expert, she argued that firing her for failure to perform
did not take into account that her job failure was stress-induced, and,
indeed, that the firing itself had added to her stress. Her expert said
her disability made her eligible for six weeks' leave with full pay. Her
employer, no doubt to avoid the expense of litigation, capitulated to
her demands and gave her the paid vacation before firing her. That is
pure blackmail. After all, straight firing would have provided even
more relief from the job-induced stress, wouldn't it?
Doesn't this sound like a claim so silly that any judge would
throw it out just on the face of it?
However, the front runner in the "my bad behavior is not my
fault I'm mentally ill" sweepstakes is probably the university professor
from Boston, fired for a long record of sexually harassing colleagues
and students, who sued the university for insensitivity to the psycho-
logical disorder that made him accost women-against his will, of
course-whenever an unfortunate female happened to be, for
example, riding on the same elevator as our sufferer. H e claimed that
he suffered from a depression that diminished his capacity to func-
r 86 WHORES OF T HE COURT
tion, and that the medication he took for the depression diminished
his capacity to keep his hands off female students and colleagues.
You'd expect a large Eastern university to be more sensitive to his
pain, now wouldn't you? It wasn't, and I hate to believe this guy ever
had a chance of prevailing in court, but there was nothing wrong with
the complainant's logic given the court's acceptance of limitless
mental disabilities as sources of discrimination suits.
Remember that the American Psychiatric Association almost put
the "uncontrollable" desire to rape in the last DSM as a mental dis-
order. Perhaps it will make it into the next edition.
In fact, U.S. Judge Magistrate Zachary Karol, in dismissing the
professor's lawsuit in the summer of 1996, did not reject the disability
claim itself but rather the applicability of the anti-discrimination law
to the particular case.
First, the EEOC [the people who enforce the ADA] could pass
administrative rules to settle the question of which standards to
use in determining whether an individual is mentally impaired.
Rather than the courts relying on the DSM . . . in some cases
and not in others, the EEOC should study the problem and
then decide whether conditions listed in the DSM . . . will be
accepted wholesale, or whether the agency will specify the par-
ticular conditions protected by the ADA. Even if the EEOC
were to do nothing more than mandate that all disorders speczfied in
the DSM . . . [except those already excluded by the ADA]$t the def-
inition of mental impairment under the Act, it would greatly
improve the present state of the law. (Casey 1994, p. 415)
No, it would not greatly improve the present state of the law. Mr.
Casey was worried that under the present haphazard implementation
of the law regarding protected mental disabilities, some behavioral
and anxiety disorders like phobias might not be comprehensively pro-
tected, but his worry was badly misplaced. As was his faith in the
American psychological establishment.
There is grave danger in accepting the premise that only self-
interested mental health professionals can judge what mental
behavior is a protected disability. Common sense goes out the
window in the face of self-interest, as well as the almost limitless
temptations provided by the money available to those in evaluative
practice and by the sheer power that comes from knowing you are the
only game in town.
Professionals with actual reality checks on their claims are con-
fined to narrow vertical markets for their services. Psychological pro-
fessionals, with virtually no checks on the validity and reliability of
their claimed expertise, have an almost limitless reach into the
recesses of all our lives.
Let's not hand them any more power over the conduct of our
lives in the workplace.
seen through this lens as somehow not truly responsible for failures
on the job.
T h e professionally compassionate clinician would no doubt claim
that this practice does no harm. Wrong. It is damn expensive. It steals
from the innocent. It makes a mockery not only of true disability but
of sincere and valid attempts to combat the waste of discrimination.
In the spring of 1996, the Boston Herald ran an article reporting
on the results of disputed firings of Boston city workers who had
been loafing and otherwise performing below par at work (Sciacca,
Boston Herald, May 2 , 1996). T h e arbitrator found for the workers,
explaining that it was not one worker's fault that he was always late; it
was his supervisor's for not nagging him to wear a watch. T h e arbi-
trator also accepted the claim of one fellow who had been sleeping in
his car during work hours that he was listening to a stress manage-
ment tape in order to deal more effectively with on-the-job stress.
Quite.
Given such a response to the not-disabled-at-all except in terms
of their work ethic, it should come as no surprise that the people who
are seen as playing with less than a full deck are essentially seen as
playing with no deck at all. T h e mass of excuses that fly out to excuse
the inexcusable behavior of the nonhandicapped are magnified
beyond measure for the mentally disabled because the rest of us are
so unsure of our ground.
It is not socially acceptable-not politically correct-to chal-
lenge claims of mental illness. This poses a much greater danger to
our society than the simple threat that society will run out of patience
with a system built to engender scams. Mental health providers who
fly in the face of common sense, making fools of practical people by
claiming skills they do not have, medicalizing bad behavior, and med-
icalizing normal reactions, gut the spirit of all types of disabilities law
and twist the spirit of the average citizen from accommodation to
outrage. There is a serious danger that people who are made fools of
will pull the plug on a support system that, if sensibly construed and
implemented, would be a good thing.
A MODEST PROPOSAL
That society wants to compensate hardworking people who get so
badly hurt that they can work no more is good and sensible. That a
FOUR H U N D R E D WAYS T O AVOID RESPONSIBILITY 293
Specialized Knowledge
Okay. So clinical beliefs are not generally held to be true by experi-
mental psychologists as well as by clinicians, and, as we have seen
chapter by chapter throughout this book, they are certainly not the
products of scientific endeavor. But perhaps they satisfy the admission
criteria for expert testimony of the Federal Rules of Evidence. Rule
702, adopted by many states as their own standard, says that if
scientifc, technical, or other specialized knowledge will assist the judge or
the jury to understand the evidence or to determine a fact in issue,
300 WHORES OF T H E COURT
Psychocultural Complicity
Certainly blame for the misrepresentation of clinical psychology as a
scientific field that uses scientific methods to arrive at scientific
results lies at the door of the clinicians themselves. They have their
agendas-missionary, political, and financial-that lead them if not
inevitably then compellingly to lay claim to a quality of expertise far
beyond their ken.
R E S T F O R T H E WARY
30'
people behave as they do, and we want to lay blame for everything
that goes wrong somewhere outside the individual. We are loohng
for a moral compass that is intellectually satisfying and scientifically
valid.
ticity on generally held views about the nature of children and human
development, about the causes of behavior and personal and societal
responsibility. We hear what we expect to hear and we accept it as
truth.
It is clear that each and every one of us has contributed to the
takeover of the American legal and judicial system by psychology.
Grateful patients, hubristic practitioners, unwilling jurors, conscien-
tious attorneys, up-to-date judges, and concerned legislators have all
participated in an unwitting conspiracy to hand over our formerly
democratic legal system to a handful of necessarily self-interested
hired guns. That our motives-and theirs-were sometimes the best
hardly improves the situation.
There are no innocent bystanders. We have all been willing wit-
nesses to the marriage of psychology and the law, we have all been
willfully blind to the dreadful offspring they have spawned.
And their offspring are everywhere.
T h e system is a nightmare of misrepresentation and injustice, of
fantasy and distortion. It must change.
"If they eat good Twinkies instead of bad Twinkies and they wake up
sane some morning, then they go to prison instead of going back out
on the street" (Boston Globe, March 9, 1996).
What is the point? Why send them to a hospital at all? If con-
victs are diabetics, we would not send them to a hospital for treat-
ment of their diabetes. They would be imprisoned along with all their
fellow nondiabetic convicts and given daily mediation for their dia-
betic condition. Why should the so-called mentally ill be treated any
differently? There is no treatment for the "criminally insane" but
drugs, and drugs they can get anywhere. It is a fiction that mental
hospitals provide effective treatment above and beyond that provided
by the drugs. A mental hospital supplies nothing effective but
employment for the staff. Anti-psychotic drugs can be administered
just as easily and far more cheaply in prisons than in mental hospitals,
and there will be no discernible difference whatsoever in the cure
rate.
We must stop pretending that psychology can do what it clearly
cannot.
In civil trials, let the plaintiffs demonstrate the injury and its
cause directly to the judge and jury without any intervening testi-
mony about the unknowable truth of their claims by psychoexpert
witnesses. Let welfare applicants demonstrate their inability to work
without the misbegotten advocacy of clinical experts.
Insurance companies and managed health care organizations
have to put a stop to reimbursement for crazy diagnoses and ineffec-
tive treatments, while patients, and parents and families of patients,
must bring suit for malpractice. Prosecutors should look into
bringing charges for fraud. If psychologists won't police themselves,
society must do it for them.
Any change in the direction of recapturing power for the people
would be swimming against a vast tide.
Psychological practitioners have powerful professional and
financial reasons for claiming that both diagnosis and rehabilitative
treatment are valid, reliable, and scientifically based. Insurance com-
panies and health care administrators have sound administrative and
record-keeping reasons for desiring clearly defined and numerically
coded diagnostic categories. Various individuals and institutions have
understandable humanitarian interests in providing equal access and a
R E S T FOR THE WARY
3'3
social safety net for those for whom the playing field will never be
level. Judges and jurors truly need expert opinion on the mental func-
tioning-and malfunctioning-of individuals who enter into the
legal system.
All these needs and desires are understandable, they are all more
than rational, but they cannot be met by the sham of today's level of
expertise in diagnosis any more than a baby's nutritional needs can be
met by a pacifier.
Judges and juries, the people alone, must decide questions of
insanity, competence, rehabilitation, custody, injury, and disability
without the help of psychological experts and their fraudulent skills.
A democratic society imposes exactly these burdens on the average
man and woman and on our judges and legislators. It is time that we
give up our attempts to hand off the weight onto the shoulders of
professional decision makers. It is past time that we throw out the
whores and take back our courts.